As set forth in my earlier articles, "Construction Accident Liability Under New York Law" and "How To Prove A Construction Site Accident Case," one of the principal theories under which a construction site worker can recover for his work-related is pursuant to New York Labor Law §240(1), which imposes upon contractors and building owners a non-delegable duty to provide certain safety equipment for workers engaged in the "…erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."

So what about the case where the plaintiff is performing work that is ancillary to a repair, such as where he was directed to push bakery racks to make the repair to the bakery's conveyor belts?

A trial court in Rockland County recently held that notwithstanding that this accident did not occur on a formal "worksite," the plaintiff could still recover under the Labor Law.

In Mielnick v. Demarest Mill Realty, a trial court in Rockland County recently held in  that "It is well settled that Labor Law §240(1) …is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed." Citing to another opinion of the Court of Appeals (New York's highest Court), the trial court stated that "Labor Law §240(1) protection is not limited to work performed on actual construction sites. Joblon v. Solow, 91 N.Y.2d 457, 1998."

Thus, while changing a lightbulb, for example will not constitute actionable "repair work" under the statute, the Court is obliged to consider the following factors in determining whether or not the plaintiff's particular activity can give rise to a viable construction site accident claim:

1) whether the work "…involved replacing components that require replacement in the course of normal wear and tear"; and,
2) whether the equipment being worked upon was inoperable or not functioning properly.

I am willing to bet the ranch that the defendants will be appealing this decision.
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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