Labor Law & Window Washers
I know it might not seem like it, but contrary to popular belief, there are more sections of the Labor Law than §§ 240(1), 200 and 241(6). In a recent decision, the Supreme Court, New York County gave us an in-depth analysis of Labor Law § 202, which is meant to protect window washers while washing widows on the exterior of buildings.
In Barreto v. Board of Mgrs. of 545 W. 110th St. Condominium (2024 NY Slip Op 30489(U)), plaintiff, a window washer, was dispatched to the subject premises to wash the exterior widows. Plaintiff was to rappel down the side of the building, for which he was given a rope main line and a boatswain’s chair. Additionally, plaintiff had a safety line that was anchored to the roof to prevent him from falling in the event of a break or other problem with the main line. The safety line was attached to plaintiff’s harness with a lanyard that also had a rope grab, which was meant to lock in place and arrest any potential fall. Notably, the balconies of the subject building were surrounded by smooth railings.
While cleaning the upper windows of the building, plaintiff’s main rope parted, and he fell approximately 12-15 feet to a terrace below. Plaintiff testified that the lanyard did not grab the safety line and arrest his fall. He also testified that he had not encountered anything sharp while cleaning, though acknowledged that the ropes had been touching metal, which he observed from the boatswain’s chair. Lastly, plaintiff acknowledged that he had had a rope guard, that could have been used to protect the ropes from rubbing on metal surfaces, but had not been using it when he fell.
At the conclusion of discovery, plaintiff moved for summary judgment as to Labor Law §§ 240(1), 241(6), and 200, as well as common law negligence. Defendants moved for summary judgment to dismiss plaintiff’s Labor Law §§ 240(1), 241(6), 200 and 202 claims, as well as plaintiff’s common law negligence claims.
- As to plaintiff’s Labor Law § 200 and common law negligence claims, the Court held that the defendants met their prima facie burden of entitlement to summary judgment and dismissal of these claims. In short, the Court rejected the argument that the steel paneling that severed the rope constituted a dangerous condition. It also rejected plaintiff’s “means and methods” argument as to Labor Law § 200 because the record established that none of the defendants supervised plaintiff’s work.
- As to plaintiff’s Labor Law § 241(6) claim, the Court cited long-standing case law that establishes that “routine exterior widow washing” is not within the ambit of § 241(6).
- As to plaintiff’s Labor Law § 240(1) claim, the Court found that issues of fact precluded summary judgment for either party. The Court specifically cited plaintiff’s rope guard, which all agree plaintiff did not use; and there was conflicting testimony as to where the rope grab was placed in relation to plaintiff, and whether it was properly placed, just prior to the subject accident.
As to the Labor Law § 202 claim, the statute provides:
The owner, lessee, agent and manager of every public building and every contractor involved shall provide such safe means for the cleaning of the windows and of exterior surfaces of such building as may be required and approved by the [industrial board of appeals] … [and] shall not require, permit, suffer or allow any window or exterior surface of such building to be cleaned unless such means are provided to enable such work to be done in a safe manner for the prevention of accidents and for the protection of the public and of persons engaged in such work in conformity of the requirements of this chapter and the rules of the board of standards and appeals. A person engaged at cleaning windows or exterior surfaces of a public building shall use the safety devices provided for his protection. Every employer and contractor involved shall comply with this section and the rules of the board and shall require his employee, while engaged in cleaning any window or exterior surface of a public building, to use the equipment and safety devices required by this chapter and rules of the [industrial board of appeals].
By its terms, § 202 protects the cleaning of only windows and exterior surfaces. It also requires the application of comparative negligence principles because statutory liability is predicated on a violation of the Industrial Code, specifically 12 N.Y.C.R.R. 21.3(b)(1), which states
[n]o owner shall suffer or permit a cleaner to clean a widow of his building unless it has the structural features and the anchors or other fixed devices required by this Part in respect to the authorized means and methods of cleaning used by the cleaner.
In the instant matter, anchors were present and utilized by plaintiff and the statute does not impose further requirements on an owner. Indeed, if the statute had intended to make owners responsible for a window cleaner’s failure to use the safety devices provided, it would have done so in the language of the statute.
There we have it – a rare look at a ruling on a New York Labor Law statute that is not §§ 200, 240(1) or 241(6).
The Barreto decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
