Nice try, but no cigar, said a New York County judge. And she was right.

In Matz v. Laboratory Institute of Merchandising, the plaintiff was an architect who was hired to go to the worksite to give dimensions to the jobsite contractor so that they could locate audiovisual devices that had been required by the blueprints. These dimensions were critical to the project, because they were needed to guide the contractor how to install the containers of these devices before the ceilings on the project could be closed.

In seeking dismissal of the plaintiff's Labor Law claims, the defendant raised an interesting argument: since the plaintiff's work at the site was, at best, only incidental to the construction, she is not the type of "construction worker" that the statutes were designed to protect.

(As we've previously noted in "Construction Site Injuries and New York's Labor Laws," Labor Law §240 (1) imposes absolute liability upon an owner or general contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure (Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 523 [1985]; Correia v. Professional Data Management, Inc., 259 AD2d 60, 63 [1st Dept 1999]). The duty imposed by Labor Law §240 (1) is nondelegable and an owner or contractor who breaches that duty may be held liable in damages regardless of whether they actually supervised or controlled the work (Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993]).)

In rejecting the defendant's position, and granting the plaintiff summary judgment on her claim, however, the Court stated as follows:

"[P]laintiff's duties did not fall into a 'separate phase easily distinguishable from other parts of the larger construction project" and the work was "ongoing and contemporaneous with the other work ... In addition, plaintiff worked for a company that was carrying out a contract involved in the construction and alteration of the building - activities covered by section 240(1)."

Well, you can't really blame them for trying, can you?
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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