Fourth Department Opens the Door for Slippery Roof Pitch in Future Cases
In a recent decision, the Appellate Division, Fourth Department unanimously reversed a Supreme Court, Monroe County decision that denied plaintiff’s motion for summary judgment as to his Labor Law § 240(1) cause of action and granted the defendant’s cross-motion to dismiss the plaintiff’s complaint.
In Verhoef v. Dean, 2024 NY Slip Op 06465, plaintiff was hired to renovate the restroom facilities at a drive-in owned and operated by the Defendant. While renovating the restrooms, which took place over the course of several weeks before the subject incident, plaintiff heard a dripping noise, and found a leak on the roof to be coming from an area around one of the many ventilation stacks. Plaintiff removed a rubber boot flashing from one of the ventilation stacks and discovered the boot was worn out and needed replacing. Defendant then commissioned plaintiff to replace all the worn-out booting around the ventilation stacks, a job which was anticipated to take two days. On the second day, while plaintiff was working on the roof, he slipped, slid off of the roof, and landed on the concrete slab below.
We note, the above-referenced rubber boot or “flashing” is to prevent rainwater, snow and other precipitation from getting under the singles or panels on a roof. Flashing of this nature usually lasts for up to 20 years before it needs replacement.
In its decision, the Supreme Court, Monroe County granted the defendant’s cross-motion because plaintiff could not “demonstrate that he was involved in one of the numerated activities,” noting that plaintiff was engaged in routine maintenance at the time of the subject incident and not “repairing,” which would fall under the protections of Labor Law § 240(1). The decision notes that “[w]hether a particular activity constitutes a repair or routine maintenance must be decided on a case-by-case basis depending on the context of the work.” Green v. Evergreen Family Ltd. Partnership, 210 A.D.3d 1496 (4th Dep’t 2022); Hakes v. Tops Mkts., LLC, 2024 NY Slip Op 51897(U) (Sup. Ct. Niagara Cty 2004). Notably, the defendant argued that replacing worn-out boots necessitated by normal wear and tear was an act of routine maintenance and their was no evidence of failure of the flashing due to a lack of water damage in the area, further lending credibility to the “wear and tear” argument.
The Appellate Division, Fourth Department disagreed with the Supreme Court, Monroe County and unanimously reversed the decision. It focused on plaintiff’s testimony that established that the rubber flashing was “malfunctioning and inoperable prior to replacement and that the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of the roof.” Further:
“[t]o the extent that the defendant asserts that the flashing plaintiff was repairing at the time of his fall was not actively leaking . . . is immaterial to whether plaintiff was performing a protected activity, inasmuch as it would be ‘inconsistent with the spirit of the Labor Law to isolate the moment of injury and ignore the general context of the work.’”
Moreover, the Fourth Department agreed with plaintiff that the rubber flashing was not merely a “component” of a ventilation system but was instead an integral part of a proper functioning roof. Plaintiff’s work was to ensure that the concession stand was no longer leaking by repairing the roof, which is precisely the work that is protected by Labor Law § 240(1). As the defendant’s failed to provide enumerated safety devices, the proper placement and operation of which would have prevent plaintiff from falling from the roof, plaintiff established his prima facie entitlement to summary judgment as a matter of law.
At first pass on this decision, I was a bit concerned that the Appellate Division, Fourth Department had opened the door for any portion of a roof to constitute an “integral part of a proper functioning roof.” A second, calmer pass over the reasoning brings this more in line with prior precedent, noting that the context matters, which the Fourth Department notes was part of a larger construction project over several weeks prior to the date of the incident. If the context had been different, such as plaintiff only being contracted to check the roof for leaks without the larder context of a multi-week construction project, it’s likely the decision would have leaned more towards “routine maintenance” rather than “repairs.”
The Verheof decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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