In a recent decision, the Appellate Division, Third Department, modified a Supreme Court, Sullivan County decision that partially denied defendant\u2019s motion for summary judgment dismissing plaintiff\u2019s complaint, and denied plaintiff\u2019s cross-motion for summary judgment as to Labor Law \u00a7 240(1).\u00a0 Notably, the lower court granted defendant\u2019s motion with respect to plaintiff\u2019s Labor Law \u00a7 241(6) claim; and denied the defendant\u2019s motion with respect to plaintiff\u2019s Labor Law \u00a7\u00a7 240(1) and 200, as well as common-law negligence, claims.<\/p>\n
In Wheat et al. v. Town of Forestburgh<\/em>, (2024 NY Slip Op 00346), plaintiff alleges that he was hired by defendant to repair damage to a salt shed located at the defendant\u2019s highway department complex.\u00a0 It was agreed between the parties that work would commence on February 4, 2021.\u00a0 On February 3, 2021, plaintiff contacted defendant and asked whether he could have a rented lift delivered that day and whether he could drop off his equipment trailer.\u00a0 After dropping off his equipment trailer on the evening of February 3, 2021, plaintiff utilized the rented lift to take measurements of the shed so he could purchase materials needed for the repair.\u00a0 While driving the lift to park it after he concluded his measurements, he drove off of the ledge of a loading dock, elevated approximately 40 inches above the ground below, and was thrown off the lift, resulting in injuries.<\/p>\n Plaintiff commenced the underlying action alleging violations of Labor Law \u00a7\u00a7 200, 240(1) and 241(6), as well as common-law negligence.\u00a0<\/p>\n Defendant appealed the lower court\u2019s decision regarding the denial of its motion as to plaintiff\u2019s common-law negligence claims.\u00a0 However, the relevant appeal here is plaintiff\u2019s cross-appeal from the Supreme Court\u2019s denial of their cross-motion for summary judgment as to Labor Law \u00a7 240(1).<\/p>\n In its decision, the Appellate Division, Third Department held that defendant had met its burden and rebuffed plaintiff\u2019s prima facie showing by raising questions of fact precluding summary judgment.\u00a0 It focused first on whether plaintiff was a statutory employee entitled to protection under Labor Law \u00a7 240(1), given that it was agreed by the parties that the repair work would not commence until the next day.\u00a0 A person is \u201cemployed\u201d under the Labor Law if they are \u201cpermitted or suffered to work\u201d (citing Labor Law \u00a7 2 [7]).\u00a0 The Third Department noted that there is a material issue of fact as to whether plaintiff was employed on the date of the subject incident and affirmed the lower court\u2019s decision.\u00a0<\/p>\n In a footnote, the Third Department also addressed defendant\u2019s argument that plaintiff was taking measurements at the time of the subject incident, and therefore was not engaging an enumerated activity entitled to Labor Law protections.\u00a0 The Third Department found this argument unpersuasive, as conducting the measurements was a preliminary part of the repair project for which he was hired, and therefore a protected activity under the Labor Law.\u00a0<\/p>\n