Binding precedents of the Court of Appeals, as well as the Appellate Division, First and Second Department hold that a worker assigned by his employer to perform repairs to a damaged or inoperable structure are a covered activity for purposes of the Labor Law, not merely routine maintenance. See Prats v. Port Authority of New York and New Jersey, 100 N.Y.2d 878, 880, 768 N.Y.S.2d 178, 179, 800 N.E.2d 351, 352 (2003); Riccio v. NHT Owners, LLC, 51 A.D.3d 897, 899, 858 N.Y.S.2d 363, 366 (2d Dep’t 2008); Rios v. WVF Paramount 545 Property, LLP, 36 A.D.3d 511, 828 N.Y.S.2d 368, 369 (1st Dep’t 2007); Bruce v. Fashion Square Associates, 8 A.D.3d 1053, 1054, 778 N.Y.S.2d 823, 824 (4th Dep’t 2004); Kerr v. Louisville Housing, Inc., 2 A.D.3d 924, 926, 769 N.Y.S.2d 616, 619 (3d Dep’t 2003); Craft v. Clark Trading Corp., 257 A.D.2d 886, 887, 684 N.Y.S.2d 48, 49-50 (3d Dep’t 1999); Holka v. Mt. Mercy Academy, 221 A.D.2d 949, 949, 634 N.Y.S.2d 310, 311 (4th Dep’t 1995).
Binding precedents from all four Departments of the Appellate Division recognize that welding is a covered activity for purposes of the Labor Law. See Elkins v. Robbins & Cowan, Inc., 237 A.D.2d 404, 405-406, 655 N.Y.S.2d 563, 564 (2d Dep’t 1997); Allen v. Telergy Network Services, Inc., 52 A.D.3d 1094, 1097, 860 N.Y.S.2d 299, 303 (3d Dep’t 2008); Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d 321, 323, 798 N.Y.S.2d 38, 40 (1st Dep’t 2005); Shields v. General Elec. Co., 3 A.D.3d 715, 717, 771 N.Y.S.2d 249, 252 (3d Dep’t 2004); Baum v. Ciminelli-Cowper Co., Inc., 300 A.D.2d 1028, 1029, 755 N.Y.S.2d 138, 139 (4th Dep’t 2002); Noble v. AMCC Corp., 277 A.D.2d 20, 714 N.Y.S.2d 495, 496 (1st Dep’t 2000).
Binding Appellate Division, First Department precedents and precedents in Kings County hold that “[a]n eight feet high chain link fence is a structure within the meaning of Labor Law Section 240(1) and, an injury occurring while in the course of [repairing, erecting or] removing it is a covered activity [citations omitted].” Romero v. Trump Village Apartments Two LLC, 20 Misc.3d 1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483*1 (Sup.Ct. Kings County September 16, 2008); see Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); see Riccio, 51 A.D.3d at 899, 858 N.Y.S.2d at 366; Rios, 36 A.D.3d at 511, 828 N.Y.S.2d at 369), which required covered welding (see Elkins, 237 A.D.2d at 405-406, 655 N.Y.S.2d at 564; Allen, 52 A.D.3d at 1097, 860 N.Y.S.2d at 303; Spadola, 19 A.D.3d at 323, 798 N.Y.S.2d at 40), on a fence, a structure for purposes of the Labor Law. (see Carino, 45 A.D.3d at 352, 845 N.Y.S.2d at 61; Romero, 20 Misc.3d 1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483 at *1).
An assertion that, even if a worker’s activities were otherwise a covered repair, Labor Law Section 240(1) would not apply because there was no ongoing construction project would also fail. The Court of Appeals, in its landmark Joblon decision, as well as precedents binding Appellate Division, First and Second Department precedents expressly reject the defendant-appellant’s argument, holding that where the worker is performing otherwise “protected activities under Labor Law Section 240(1)”, expressly including repairs, alteration of a structure, or painting, said work “need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered [citations omitted].” Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190, 191-192 (2d Dep’t 2005) (“The scraping and painting performed by the plaintiff were protected activities under Labor Law Section 240(1) and need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered (see De Oliveira v. Little John’s Moving, 289 A.D.2d 108, 734 N.Y.S.2d 165, citing Perez v. Spring Cr. Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515).”); see Joblon v. Solow, 91 N.Y.2d 457, 463-464, 672 N.Y.S.2d 286, 289-290, 695 N.E.2d 237, 240-241 (1998); Blair v. Cristani, 296 A.D.2d 471, 472, 745 N.Y.S.2d 468, 468-469 (2d Dep’t 2002); De Oliveira v. Little John’s Moving, Inc., 289 A.D.2d 108, 734 N.Y.S.2d 165, 166 (1st Dep’t 2001) (“The scraping performed by plaintiff is encompassed within the term “painting” in section 240(1) (see, Perez v. Spring Creek Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515), and need not have been incidental to the other listed activities, such as construction, repair or alteration, to be covered (cf., Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284; Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888).”); Cornacchione v. Clark Concrete Co., Inc., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572, 573 (4th Dep’t 2000); Chapman v. International Business Machines Corporation, 253 A.D.2d 123, 127, 686 N.Y.S.2d 888, 891-892 (3d Dep’t 1999) (“We note that, under this statute, ‘cleaning * * * of a building or structure’ is listed in the alternative to a series of other covered activity, i.e. covered activities include the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building’ (Labor Law Section 240[1] [emphasis supplied] ). In our view, under a plain reading of the statute, there is no requirement or condition that commercial cleaning be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered.”). In its landmark decision in Joblon, 91 N.Y.2d at 463-464, 672 N.Y.S.2d at 289-290, 695 N.E.2d at 240-241, the Court of Appeals, expressly rejecting this argument, held as follows:
“Thus, defendants suggest that a guiding principle for courts should be to examine the context of the work leading to the injury, and only when it is performed as part of a building construction job should Labor Law Section 240(1) liability attach.
Such a rule would, of course, ignore prior holdings that workers injured while cleaning a railway car (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra ), repairing an electrical sign (Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318) or painting a house (Rivers v. Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191) come within the ambit of the statute even though they were not working at a building construction site. Furthermore, we have already defined a ‘structure,’ for purposes of Labor Law Section 240(1), as ‘’any production or piece of work artificially built up or composed of parts joined together in some definite manner’’ (Lewis Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434). Now to limit the statute’s reach to work performed on a construction site would eliminate possible recovery for work performed on many structures falling within the definition of that term but found off construction sites (see, e.g., id. [telephone pole]; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra [railway car] ).”
In Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573, the Appellate Division, Fourth Department held that other statutorily enumerated activities, such as painting or repairs, need not be incidental to other listed activities, such as construction or renovation, to fit within Labor Law §§ 240(1) or 241(6):
“Finally, we conclude that the painting work being performed by plaintiff’s decedent was an activity covered by Labor Law Section 240(1) and Section 241(6). “[T]here is no requirement or condition that [painting] be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered” (Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888; see also, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284). We therefore modify the order in appeal No. 1 by denying the motion of Piscitell in part and reinstating the Labor Law Section 241(6) claim against it.”
In Blair, 296 A.D.2d at 472, 745 N.Y.S.2d at 468-469, the Appellate Division, Second Department, citing Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573, identically held that painting, one of the statutorily enumerated activities, like performing repairs, was a covered activity for purposes of Labor Law Section 241(6), independent of any construction or renovation:
“The plaintiff is also entitled to summary judgment on the cause of action pursuant to Labor Law Section 241(6) and the branch of the defendant’s motion which was to dismiss that cause of action should have been denied. Contrary to the determination of the Supreme Court, the activity in which the plaintiff was engaged when he was injured falls within the scope of Labor Law Section 241(6) (see 12 NYCRR 23-1.4[b][13]; Cornacchione v. Clark Concrete Co., 278 A.D.2d 800, 723 N.Y.S.2d 572; Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595, 631 N.Y.S.2d 378).”
It is irrelevant whether repair work, a statutorily enumerated activity, took place in a construction context or incidental to a construction or renovation project (see Blair, 296 A.D.2d at 472, 745 N.Y.S.2d at 468-469; Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573), as repairing a broken fence constitutes a statutorily enumerated covered repair for purposes of both Labor Law Section 240(1) (see Beehner, 3 N.Y.3d at 752, 821 N.E.2d at 941, 788 N.Y.S.2d at 637; Prats, 100 N.Y.2d at 880, 882, 768 N.Y.S.2d at 179, 181, 800 N.E.2d at 352, 354; Juchniewicz, 46 A.D.3d at 624, 848 N.Y.S.2d at 257-258; Bruce, 8 A.D.3d at 1054, 778 N.Y.S.2d at 824; Franco, 280 A.D.2d at 409-410, 721 N.Y.S.2d at 5).
by Richard A. Klass, Esq.
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copyr. 2014 Richard A. Klass, Esq.
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