As noted in our earlier articles, "How to Prove a Construction Site Accident Case in New York" and "Construction Site Injuries and New York's Labor Laws," one of the ways that a construction worker can recover for the personal injuries that he sustained at a worksite is when his injury resulted from an elevation-related hazard under New York's Worker Safety Statute, Labor Law §240(1). This article aims to discuss this particular provision in some greater detail, because the question of whether this statutory section applies will often turn on a very fact-specific inquiry.

According to the statute, "erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure" are protected acts; on the other hand, "routine" repairs or inspections have, as a general rule, been held not to fall within the statute's ambit.

Here's where a very strong word of caution is in order.

Unfortunately, since the injuries involved in a construction site accident setting are typically rather serious, and the list of protected activities is fairly vague, it should come as no suprise that there has been, and continues to be, a significant amount of litigation over which specific activities fall within these categories - and which activities do not. Further complicating matters is that New York's courts have not provided any formula to help determine whether the statute applies or not; to the contrary, their decisions have proven highly unpredictable - and perhaps inconsistent - on this topic.

For example, while in MacMahon v. H.S.M. Packaging Corp.,one appellate court held that he Fourth Department deemed inspections and investigatory work to be outside the purview of Labor Law 240, in Parente v. 277 Park Ave., a different appellate court held that an inspection can still fall within the purview of Labor Law 240 if the inspection is both "necessary and integral" to an activity that is explicity covered by the statute.

Likewise, there has been a fair amount over what constitutes an "alteration" under the statute, as well as what qualifies as a protected "repair" as opposed to a "routine" repair that would not be protected under New York law.

In sum, and sadly for an injured construction worker, there is no short-cut answer to finding out on your own whether you can recover for your construction site injuries under New York law; it will, in all likelihood, require the analysis of a qualified New York construction accident attorney.
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer