New Developments In New York Labor Law Sections 200, 240 & 241 Stephen Wellinghorst, Esquire Wellinghorst & Fronzuto, L.L.C. 4 Franklin Avenue Ridgewood,

New Developments InNew Developments InNew York Labor Law Sections New York Labor Law Sections

200, 240 & 241200, 240 & 241

Stephen Wellinghorst, EsquireStephen Wellinghorst, EsquireWellinghorst & Fronzuto, L.L.C.Wellinghorst & Fronzuto, L.L.C.

4 Franklin Avenue4 Franklin AvenueRidgewood, N.J. 07450Ridgewood, N.J. 07450

(201) 251-0046(201) 251-0046

New York Office:New York Office:10 Potter Lane10 Potter Lane

Suffern, N.Y. 10901Suffern, N.Y. 10901

Table of ContentsTable of Contents

New York Labor Law Section 200New York Labor Law Section 200 New York Labor Law Section 240New York Labor Law Section 240 New York Labor Law Section 241New York Labor Law Section 241 Contribution and Indemnification Issues Contribution and Indemnification Issues

New York Labor Law Section 200New York Labor Law Section 200PurposePurpose

Section 200 merely codifies common-law Section 200 merely codifies common-law duty of owner or general contractor to duty of owner or general contractor to provide safe place for workers at provide safe place for workers at construction site. construction site.

New York Labor Law Section 200New York Labor Law Section 200History and EvolutionHistory and Evolution

Employer originally had a common law duty Employer originally had a common law duty to provide a safe workplace.to provide a safe workplace.

Section 200 extended the common law by Section 200 extended the common law by including within “workplace”, tools and including within “workplace”, tools and appliances.appliances.

Section 200 has also made the duty non-Section 200 has also made the duty non-delegable.delegable.

New York Labor Law Section 200New York Labor Law Section 200Application of Section 200Application of Section 200

Section 200 only applies where there is Section 200 only applies where there is actual or constructive notice of an alleged actual or constructive notice of an alleged dangerous condition and control by an dangerous condition and control by an entity.entity.

EVERYONE GETS SUED!!EVERYONE GETS SUED!!

New York Labor Law Section 200New York Labor Law Section 200Issues Relating to Direction and Issues Relating to Direction and

ControlControl Generally, Section 200 only applies to entities who are able Generally, Section 200 only applies to entities who are able

to exercise control over work.to exercise control over work. Party charged with violation of Section 200 must be shown Party charged with violation of Section 200 must be shown

to have exercised sufficient control over work being to have exercised sufficient control over work being performed to have been in position to correct or avoid performed to have been in position to correct or avoid unsafe condition. unsafe condition. Rosas v IshackRosas v Ishack, 631 N.Y.S.2d 417 (2, 631 N.Y.S.2d 417 (2ndnd Dept. 1995). Dept. 1995).

Defendant was entitled to summary judgment in action Defendant was entitled to summary judgment in action under Section 200 since its contract with owner was limited under Section 200 since its contract with owner was limited to demolition and construction of 2 walls, without any right to demolition and construction of 2 walls, without any right to control worksite. Saaverda v East Fordham Rd. Real to control worksite. Saaverda v East Fordham Rd. Real Estate Corp., 649 N.Y.S.2d 416 (1Estate Corp., 649 N.Y.S.2d 416 (1stst Dept. 1996). Dept. 1996).

New York Labor Law Section 200New York Labor Law Section 200Notice IssuesNotice Issues

The common-law duty to provide a safe The common-law duty to provide a safe place to work is embodied in subdivision 1 place to work is embodied in subdivision 1 of Section 200 and to be charged with of Section 200 and to be charged with negligence for breach of this duty, an owner negligence for breach of this duty, an owner must have notice, either constructive or must have notice, either constructive or actual, of the dangerous condition which actual, of the dangerous condition which caused the accident. caused the accident.

New York Labor Law Section 200New York Labor Law Section 200Notice Issues, ContinuedNotice Issues, Continued

There is no liability under Section 200 where the There is no liability under Section 200 where the alleged dangerous condition is open and obvious.alleged dangerous condition is open and obvious.

SeeSee e.g.e.g. Panetta v. Paramount Communs.Panetta v. Paramount Communs., 681 , 681 N.Y.S.2d 85 (2N.Y.S.2d 85 (2ndnd Dept. 1998). Liability for Dept. 1998). Liability for common-law negligence and violation of Section common-law negligence and violation of Section 200 did not attach, because dangerous condition 200 did not attach, because dangerous condition complained of was open and obvious, where complained of was open and obvious, where plaintiff hit his head on overhead pipe that was plaintiff hit his head on overhead pipe that was part of scaffolding at work site. part of scaffolding at work site.

New York Labor Law Section 240New York Labor Law Section 240StatuteStatute

All contractors and owners (with the All contractors and owners (with the exception of single and two family exception of single and two family homeowners) who are performing erection, homeowners) who are performing erection, demolition, repairing, altering, painting or demolition, repairing, altering, painting or cleaning of a building shall be required to cleaning of a building shall be required to furnish scaffolding, hoists, stays, ladders furnish scaffolding, hoists, stays, ladders and other devices to all persons performing and other devices to all persons performing such work. such work.

New York Labor Law Section 240New York Labor Law Section 240Purpose and RequirementsPurpose and Requirements

The purpose of this law is to protect workers The purpose of this law is to protect workers engaged in construction activities involving heights engaged in construction activities involving heights by mandating the use of protective equipment and by mandating the use of protective equipment and charging the responsibility for provision of such charging the responsibility for provision of such equipment to the owner of the site. The law equipment to the owner of the site. The law exempts single and two family homeowners from exempts single and two family homeowners from its applicability unless such are exercising control its applicability unless such are exercising control over the work. Also exempt are professional over the work. Also exempt are professional engineers and architects so long as they are not engineers and architects so long as they are not directing the work being performed. directing the work being performed.

New York Labor Law Section 240New York Labor Law Section 240Purpose and Requirements, Purpose and Requirements,

ContinuedContinued In addition, the law requires that scaffolding In addition, the law requires that scaffolding

over 20 feet high is mandated to have a over 20 feet high is mandated to have a safety rail that is at least 34 inches above safety rail that is at least 34 inches above the floor of the platform and must be the floor of the platform and must be fastened to avoid swaying. Finally, all fastened to avoid swaying. Finally, all scaffolding must be able to bear weight scaffolding must be able to bear weight fourfour times that which will be placed on it when in times that which will be placed on it when in use.use.


The law’s origins trace back to 1885 which made The law’s origins trace back to 1885 which made the failure to provide scaffolding a misdemeanor the failure to provide scaffolding a misdemeanor for the employer. It has been amended multiple for the employer. It has been amended multiple times over the years to increase the scope of the times over the years to increase the scope of the statute and protection afforded to the workers. In statute and protection afforded to the workers. In 1921, it was amended to require lings, hangers, 1921, it was amended to require lings, hangers, blocks, pulleys, braces, irons and ropes as well as blocks, pulleys, braces, irons and ropes as well as the original requirements of scaffolding. the original requirements of scaffolding.

New York Labor Law Section 240New York Labor Law Section 240History and Evolution, ContinuedHistory and Evolution, Continued

The duties imposed under the statute are The duties imposed under the statute are non-delegable and an owner or general non-delegable and an owner or general contractor will not escape liability by contractor will not escape liability by delegating the responsibility to other delegating the responsibility to other contractors or subcontractors. contractors or subcontractors. SeeSee e.g.e.g. Kelly Kelly v. Diesel Constructionv. Diesel Construction, 35 N.Y.2d 1 (1974), , 35 N.Y.2d 1 (1974), Rocha v. State of New YorkRocha v. State of New York, 45 A.D.2d 633 , 45 A.D.2d 633 (3d Dept. 1974) (3d Dept. 1974)


Section 240 was intended by legislature to Section 240 was intended by legislature to place ultimate responsibility for building place ultimate responsibility for building practices on property owners and practices on property owners and contractors contractors notnot the workers who are the workers who are scarcely in a position to protect themselves scarcely in a position to protect themselves from accidents. from accidents. Lombardi v. StoutLombardi v. Stout, 80 , 80 N.Y.2d 290 (1992). (Because the unions in N.Y.2d 290 (1992). (Because the unions in New York are so weak.)New York are so weak.)


Liability is mandated against an owner or Liability is mandated against an owner or contractor who fails to provide appropriate contractor who fails to provide appropriate safety devices, regardless of what the terms safety devices, regardless of what the terms of the contract provide or what the custom of the contract provide or what the custom and practice in the construction industry and practice in the construction industry may be. If evidence establishes absence of may be. If evidence establishes absence of safety devices, Section 240 has been safety devices, Section 240 has been violated. violated. Zimmer v. Chemung County Zimmer v. Chemung County Performing ArtsPerforming Arts, 65 N.Y.2d 513 (1985), 65 N.Y.2d 513 (1985)

New York Labor Law Section 240New York Labor Law Section 240Liability of Particular EntitiesLiability of Particular Entities

Although the law exempts single and two Although the law exempts single and two family homeowners from its applicability family homeowners from its applicability unless such are exercising control over the unless such are exercising control over the work. Also exempt are professional work. Also exempt are professional engineers and architects so long as they are engineers and architects so long as they are not directing the work being performed. not directing the work being performed. However, such persons can still be held However, such persons can still be held liable under common law or other provisions liable under common law or other provisions of the law. of the law.

New York Labor Law Section 240New York Labor Law Section 240Activities Covered by Statute Activities Covered by Statute

Injury Related to Force of GravityInjury Related to Force of Gravity

ROCOVICH V. CONSOLIDATED EDISONROCOVICH V. CONSOLIDATED EDISON, 78 , 78 N.Y.2d 509 (1991) CASE INVOLVED ROOFER N.Y.2d 509 (1991) CASE INVOLVED ROOFER WORKING ON A ROOF WHO SLIPPED AND WORKING ON A ROOF WHO SLIPPED AND FELL INTO 12” TROUGH WHICH RAN ALONG FELL INTO 12” TROUGH WHICH RAN ALONG THE ROOFLINE. PLAINTIFF ARGUED THAT THE ROOFLINE. PLAINTIFF ARGUED THAT THERE WAS SOME ELEVATION THUS THERE WAS SOME ELEVATION THUS SECTION 240 APPLIED. COURT HELD THAT 12 SECTION 240 APPLIED. COURT HELD THAT 12 INCH ELEVATION DIFFERENTIAL DID NOT INCH ELEVATION DIFFERENTIAL DID NOT MANDATE USE OF PROTECTIVE DEVICES MANDATE USE OF PROTECTIVE DEVICES UNDER SECTION 240. 12” NOT ENOUGH TO UNDER SECTION 240. 12” NOT ENOUGH TO TRIGGER SECTION 240.TRIGGER SECTION 240.


Injury Related to Force of GravityInjury Related to Force of Gravity COURT ESTABLISHED APPLICATION OF COURT ESTABLISHED APPLICATION OF

STATUTE WHEN: DIFFERENCE IN HEIGHT STATUTE WHEN: DIFFERENCE IN HEIGHT BETWEEN WORKER AND LEVEL BELOW BETWEEN WORKER AND LEVEL BELOW WORKER OR WHEN DIFFERENCE IN HEIGHT WORKER OR WHEN DIFFERENCE IN HEIGHT BETWEEN WORKER AND MATERIALS BEING BETWEEN WORKER AND MATERIALS BEING HOISTED OR SECURED ABOVE WORKER.HOISTED OR SECURED ABOVE WORKER.

COURT ALSO RULED THE HEIGHT ALONE IS COURT ALSO RULED THE HEIGHT ALONE IS NOT THE SOLE CRITERIA FOR APPLICATION NOT THE SOLE CRITERIA FOR APPLICATION OF SECTION 240.OF SECTION 240.

APPLICABILITY DETERMINED CASE BY CASE.APPLICABILITY DETERMINED CASE BY CASE.


Special HazardSpecial Hazard AlROSS V. CURTIS PALMERAlROSS V. CURTIS PALMER, 81 N.Y.2d 494 (1993) , 81 N.Y.2d 494 (1993)

COURT EXPANDED COURT EXPANDED ROCOVICHROCOVICH TO REQUIRE THAT TO REQUIRE THAT INJURY MUST HAVE A DIRECT CONNECTION TO INJURY MUST HAVE A DIRECT CONNECTION TO DANGERS POSED BY RISKS ASSOCIATED WITH DANGERS POSED BY RISKS ASSOCIATED WITH GRAVITY BEFORE LIABILITY ATTACHES (PLAINTIFF GRAVITY BEFORE LIABILITY ATTACHES (PLAINTIFF WORKING ON SCAFFOLDING BUT DID NOT FALL WORKING ON SCAFFOLDING BUT DID NOT FALL FROM SUCH).FROM SUCH).

COURT HELD THAT SECTION 240 WAS DESIGNED TO COURT HELD THAT SECTION 240 WAS DESIGNED TO PREVENT THOSE TYPES OF ACCIDENTS IN WHICH PREVENT THOSE TYPES OF ACCIDENTS IN WHICH THE SCAFFOLD ETC PROVED INADEQUATE TO THE SCAFFOLD ETC PROVED INADEQUATE TO SHIELD THE WORKER FROM HARM. SHIELD THE WORKER FROM HARM.

New York Labor Law Section 240New York Labor Law Section 240 Activities Covered by Statute Activities Covered by Statute

Special HazardSpecial Hazard NARDUCCI V. MANHASSET BAY ASSOCIATESNARDUCCI V. MANHASSET BAY ASSOCIATES, ,

96 N.Y.2d (2001) PLAINTIFF INJURED WHEN 96 N.Y.2d (2001) PLAINTIFF INJURED WHEN GLASS FELL UPON HIM WHILE STANDING ON GLASS FELL UPON HIM WHILE STANDING ON A LADDER; COURT FOUND THE LIABILITY A LADDER; COURT FOUND THE LIABILITY UNDER SECTION 240 CONTINGENT UPON THE UNDER SECTION 240 CONTINGENT UPON THE EXISTENCE OF A HAZARD CONTEMPLATED EXISTENCE OF A HAZARD CONTEMPLATED BY THE STATUTE. AS SUCH, FALLING BY THE STATUTE. AS SUCH, FALLING OBJECTS WOULD BE COVERED UNDER OBJECTS WOULD BE COVERED UNDER SECTION 240 IF RELATED TO ITEMS BEING SECTION 240 IF RELATED TO ITEMS BEING HOISTED OR SECURED OR IF IT IS PART OF HOISTED OR SECURED OR IF IT IS PART OF BUILDING BEING WORKED ON. BUILDING BEING WORKED ON.


Height SpecificationsHeight Specifications SECTION 240 DOES NOT PROVIDE FOR HEIGHT SECTION 240 DOES NOT PROVIDE FOR HEIGHT

SPECIFICATION FOR APPLICABILITY OF STATUTESPECIFICATION FOR APPLICABILITY OF STATUTE THOMPSON V. ST. CHARLES CONDOMINIUMSTHOMPSON V. ST. CHARLES CONDOMINIUMS, 756 , 756

N.Y.S.2d 530 (1ST Dept. 2003) PLAINTIFF WAS MASON N.Y.S.2d 530 (1ST Dept. 2003) PLAINTIFF WAS MASON TENDER WHO PLACED BRICKS AND MORTAR ON TENDER WHO PLACED BRICKS AND MORTAR ON FOUR FOOT HIGH SAWHORSE SCAFFOLD FOR BRICK FOUR FOOT HIGH SAWHORSE SCAFFOLD FOR BRICK LAYER TO USE. BRICK LAYER CLIMBED SCAFFOLD LAYER TO USE. BRICK LAYER CLIMBED SCAFFOLD WHICH COLLAPSED AND BLOCK FELL ON PLAINTIFF WHICH COLLAPSED AND BLOCK FELL ON PLAINTIFF ON GROUND. COURT HELD THAT THERE IS NO DE ON GROUND. COURT HELD THAT THERE IS NO DE MINIMUS HEIGHT FOR SECTION 240 TO APPLY. MINIMUS HEIGHT FOR SECTION 240 TO APPLY. COURT FOUND APPLICABILITY OF 240 BECAUSE OF COURT FOUND APPLICABILITY OF 240 BECAUSE OF FAILURE OF PRESENCE OF SAFETY DEVISE RATHER FAILURE OF PRESENCE OF SAFETY DEVISE RATHER THAN HEIGHT. THAN HEIGHT.


Typical HazardsTypical Hazards COURTS HAVE FOUND APPLICABILITY COURTS HAVE FOUND APPLICABILITY

OF SECTION 240 IN THE FOLLOWING OF SECTION 240 IN THE FOLLOWING SITUATIONS:SITUATIONS:– ELEVATED RAMPS ELEVATED RAMPS – FIRE ESCAPE LADDER FALL OFF BUILDING FIRE ESCAPE LADDER FALL OFF BUILDING – PAINTING DIVING BOARD OF POOLPAINTING DIVING BOARD OF POOL– LADDERS (BOTH SECURED AND LADDERS (BOTH SECURED AND

UNSECURED)UNSECURED)

New York Labor Law Section 240New York Labor Law Section 240Devices Involved with StatuteDevices Involved with Statute

Trucks Trucks

COURT DETERMINED THAT FALLING COURT DETERMINED THAT FALLING FROM A CONSTRUCTION VEHICLE IS FROM A CONSTRUCTION VEHICLE IS NOT AN ELEVATED RISK NOT AN ELEVATED RISK CONTEMPLATED BY SECTION 240 CONTEMPLATED BY SECTION 240 ((BOND V. YORK HUNTER BOND V. YORK HUNTER CONSTRUCTIONCONSTRUCTION, 95 N.Y.2d 993 (2000)., 95 N.Y.2d 993 (2000).

New York Labor Law Section 240New York Labor Law Section 240 Devices Involved with StatuteDevices Involved with Statute

Trucks Trucks CASES ALSO HOLD THAT LOADING AND CASES ALSO HOLD THAT LOADING AND

UNLOADING OF TRUCKS IS NOT ELEVATED UNLOADING OF TRUCKS IS NOT ELEVATED RISK UNDER SECTION 240 (RISK UNDER SECTION 240 (CABEZAS V. CON CABEZAS V. CON ED,ED, 296 A.D.2d 522 (2d Dept. 2002)) 296 A.D.2d 522 (2d Dept. 2002))

MOST CASES INVOLVING TRUCKS ARE MOST CASES INVOLVING TRUCKS ARE RESOLVED IN FAVOR OF DEFENDANTS RESOLVED IN FAVOR OF DEFENDANTS UNLESSUNLESS TRUCK BEING USED AS PLATFORM TRUCK BEING USED AS PLATFORM TO PERFORM ELEVATED WORK. TO PERFORM ELEVATED WORK.

New York Labor Law Section 240New York Labor Law Section 240 Devices Involved with StatuteDevices Involved with StatuteStairways and Fixed StructuresStairways and Fixed Structures

COURTS HAVE CONSISTENTLY HELD THAT SECTION COURTS HAVE CONSISTENTLY HELD THAT SECTION 240 DOES NOT APPLY TO SLIP AND FALLS IN 240 DOES NOT APPLY TO SLIP AND FALLS IN STAIRWAYS AS STAIRS ARE NOT CONSIDERED STAIRWAYS AS STAIRS ARE NOT CONSIDERED SAFETY DEVICES IF PERMANENT PART OF BUILDING SAFETY DEVICES IF PERMANENT PART OF BUILDING ((MILANESE V. KELLERMANMILANESE V. KELLERMAN, 41 A.D.3D 1058 (3D DEPT. , 41 A.D.3D 1058 (3D DEPT. 2007) 2007)

THE CONTROLLING FACTOR IN THESE CASES IS NOT THE CONTROLLING FACTOR IN THESE CASES IS NOT WHETHER THE DEVICE IS PERMANENT BUT WHETHER THE DEVICE IS PERMANENT BUT WHETHER IT SERVES THE PURPOSE OF PROVIDING WHETHER IT SERVES THE PURPOSE OF PROVIDING AN ELEVATED PLATFORM. (SOMETIMES STAIRS ARE AN ELEVATED PLATFORM. (SOMETIMES STAIRS ARE CONSIDERED ELEVATED WORK PLATFORMS.)CONSIDERED ELEVATED WORK PLATFORMS.)

New York Labor Law Section 240New York Labor Law Section 240 Devices Involved with StatuteDevices Involved with Statute

ElevatorsElevators

GENERALLY, SECTION 240 WILL NOT GENERALLY, SECTION 240 WILL NOT APPLY EVEN THOUGH ELEVATORS ARE APPLY EVEN THOUGH ELEVATORS ARE INHERENTLY HEIGHT RELATED.INHERENTLY HEIGHT RELATED.

New York Labor Law Section 240New York Labor Law Section 240Risks Covered by StatuteRisks Covered by Statute

SECTION 240 RELATES NOT ONLY TO SECTION 240 RELATES NOT ONLY TO CONSTRUCTION OF BUILDING BUT CONSTRUCTION OF BUILDING BUT DEMOLITION, REPAIR, ALTERATION, DEMOLITION, REPAIR, ALTERATION, CLEANING AND OTHER MAINTENCE CLEANING AND OTHER MAINTENCE RELATED WORKRELATED WORK

New York Labor Law Section 240New York Labor Law Section 240 Risks Covered by Statute, Risks Covered by Statute,

ContinuedContinued

BUSTAMANTE V. CHASE MANHATTANBUSTAMANTE V. CHASE MANHATTAN, 241 , 241 A.D.2d 327 (1ST Dept. 1997) PLAINTIFF FELL A.D.2d 327 (1ST Dept. 1997) PLAINTIFF FELL OFF LADDER WHEN CLEANING TOPS OF OFF LADDER WHEN CLEANING TOPS OF PARTITIONS; SECTION 240 APPLICABLE. PARTITIONS; SECTION 240 APPLICABLE.

VERNUM V. ZILKAVERNUM V. ZILKA, 241 A.D.2d 885 (3d Dept. , 241 A.D.2d 885 (3d Dept. 1997) PLAINTIFF SHOVELING SNOW OFF 1997) PLAINTIFF SHOVELING SNOW OFF ROOF CONSIDERED CLEANING AND SECTION ROOF CONSIDERED CLEANING AND SECTION 240 APPLICABLE WHEN INJURY OCCURRED.240 APPLICABLE WHEN INJURY OCCURRED.

New York Labor Law Section 240New York Labor Law Section 240 Risks Covered by StatuteRisks Covered by Statute

Alteration of PremisesAlteration of Premises

COURT RULINGS ON THIS TYPE OF COURT RULINGS ON THIS TYPE OF WORK HAVE FOUND THAT SECTION 240 WORK HAVE FOUND THAT SECTION 240 IS APPLICABLE IF THE WORK BEING IS APPLICABLE IF THE WORK BEING PERFORMED RESULTS IN A PERFORMED RESULTS IN A SUBSTANTIAL PHYSICAL CHANGE TO SUBSTANTIAL PHYSICAL CHANGE TO THE BUILDING OR ITS COMPONENTS THE BUILDING OR ITS COMPONENTS ((JOBLON V. SOLOJOBLON V. SOLO, 91 N.Y.2d 457 (2004))., 91 N.Y.2d 457 (2004)).

New York Labor Law Section 240New York Labor Law Section 240 Risks Covered by StatuteRisks Covered by Statute

Work Associated with Work Associated with ConstructionConstruction

CASES FIND APPLICATION OF SECTION 240 IN CASES FIND APPLICATION OF SECTION 240 IN SUCH SITUATIONS AS REPAIRING BACK HOE SUCH SITUATIONS AS REPAIRING BACK HOE DURING CONSTRUCTION OF PIPELINE DURING CONSTRUCTION OF PIPELINE ((COVEY V. IROQUOIS GASCOVEY V. IROQUOIS GAS, 89 N.Y.2d. 952 , 89 N.Y.2d. 952 (1997)), INSPECTION OF CONSTRUCTION SITE (1997)), INSPECTION OF CONSTRUCTION SITE ((MCMANN V. HSM PACKING CORPMCMANN V. HSM PACKING CORP., 755 ., 755 N.Y.S.2d 186 (4TH Dept. 2004), PERFORMANCE N.Y.S.2d 186 (4TH Dept. 2004), PERFORMANCE OF SECURITY GUARD DUTIES (OF SECURITY GUARD DUTIES (SPAULDING V. SPAULDING V. BAY RIDGEBAY RIDGE, 759 N.Y.S.2d 179 (2d Dept. 2005)., 759 N.Y.S.2d 179 (2d Dept. 2005).

New York Labor Law Section 240New York Labor Law Section 240 Risks Covered by StatuteRisks Covered by StatuteRepair and MaintenanceRepair and Maintenance

GENERALLY, ROUTINE MAINTENANCE IS GENERALLY, ROUTINE MAINTENANCE IS NOTNOT COVERED UNDER SECTION 240 UNLESS IT IS COVERED UNDER SECTION 240 UNLESS IT IS AN INTEGRAL PART OF SOME OTHER AN INTEGRAL PART OF SOME OTHER COVERED ACTIVITY I.E. MAINTENCE WORKER COVERED ACTIVITY I.E. MAINTENCE WORKER INJURED IN ACTIVE CONSTUCTION SITE. INJURED IN ACTIVE CONSTUCTION SITE.

New York Labor Law Section 240New York Labor Law Section 240Liabilities of Particular EntitiesLiabilities of Particular Entities

SECTION 240 IS A CATEGORY OF PREMISES SECTION 240 IS A CATEGORY OF PREMISES LIABILITY. ABSENT A SHOWING THAT LIABILITY. ABSENT A SHOWING THAT DEFENDANT COULD NOT CONTROL THE DEFENDANT COULD NOT CONTROL THE ACTIVITIES ASSOCIATED WITH PLAINTIFF’S ACTIVITIES ASSOCIATED WITH PLAINTIFF’S WORK, LIABILITY CANNOT ATTACH. WORK, LIABILITY CANNOT ATTACH. HOWEVER, IF WORK BEING DONE IS HOWEVER, IF WORK BEING DONE IS INTEGRAL AND NECESSARY TO THE INTEGRAL AND NECESSARY TO THE CONTEMPLATED CONSTRUCTION, IT IS CONTEMPLATED CONSTRUCTION, IT IS COVERED. COVERED.

New York Labor Law Section 240New York Labor Law Section 240Liabilities of Particular Entities, Liabilities of Particular Entities,

ContinuedContinued SECTION 240 APPLIES TO ALL SECTION 240 APPLIES TO ALL

CONTRACTORS, OWNERS AND THEIR CONTRACTORS, OWNERS AND THEIR AGENTS WHO ARE INVOLVED IN THE AGENTS WHO ARE INVOLVED IN THE DEMOLITION, CONSTRUTION, REPAIR OF DEMOLITION, CONSTRUTION, REPAIR OF BUILDINGS AND STRUCTURES. APPLIES TO BUILDINGS AND STRUCTURES. APPLIES TO ALL OWNERS REGARDLESS OF DEGREE OF ALL OWNERS REGARDLESS OF DEGREE OF CONTROL OR EVEN WHETHER OWNER CONTROL OR EVEN WHETHER OWNER CONTRACTED FOR WORK OR BENEFITTED CONTRACTED FOR WORK OR BENEFITTED FROM IT (FROM IT (GORDON V. EASTERN RAILWAY GORDON V. EASTERN RAILWAY SUPPLYSUPPLY, 82 N.Y.2d 555 (1993))., 82 N.Y.2d 555 (1993)).


ContinuedContinued

STATUTE WILL NOT APPLY IF STATUTE WILL NOT APPLY IF PERFORMED WITHOUT CONSENT, IN PERFORMED WITHOUT CONSENT, IN VIOLATION OF LEASE AND STATUTE VIOLATION OF LEASE AND STATUTE ((SANATASS V. CONSOLIDATED SANATASS V. CONSOLIDATED INVESTING CO.,INVESTING CO., 38 A.D.3d 332 (1ST Dept. 38 A.D.3d 332 (1ST Dept. 2007)).2007)).


ContinuedContinued

SECTION 240 IS NON-DELEGABLE FOR SECTION 240 IS NON-DELEGABLE FOR GENERAL CONTRACTORS. CONSTRUCTION GENERAL CONTRACTORS. CONSTRUCTION MANAGERS MAY BE HELD LIABLE IF HAVE MANAGERS MAY BE HELD LIABLE IF HAVE DUTY TO CONTROL THE WORK GIVING RISE DUTY TO CONTROL THE WORK GIVING RISE TO THE INJURY (TO THE INJURY (KENNY V. GEORGE A FULLER KENNY V. GEORGE A FULLER CO.CO., 87 A.D. 183 (2d Dept. 1982); , 87 A.D. 183 (2d Dept. 1982); PINO V. PINO V. IRVINGTON UNION FREE SCHOOL DISTRICTIRVINGTON UNION FREE SCHOOL DISTRICT, , 43 A.D.3d 1130 (2d Dept. 2007)). 43 A.D.3d 1130 (2d Dept. 2007)).


ContinuedContinued

INDEPENDENT PRIME CONTRACTORS NOT INDEPENDENT PRIME CONTRACTORS NOT LIABLE UNDER SECTION 240 FOR INJURIES LIABLE UNDER SECTION 240 FOR INJURIES SUSTAINED OUTSIDE THE SCOPE OF WORK SUSTAINED OUTSIDE THE SCOPE OF WORK INCLUDED IN CONTRACT. SAME APPLIES TO INCLUDED IN CONTRACT. SAME APPLIES TO SUBCONTRACTORS ON A PROJECT SUBCONTRACTORS ON A PROJECT ((AVERSANO V. JWH CONTRACTING LLC.,AVERSANO V. JWH CONTRACTING LLC., 37 37 A.D.3d 745 (2d. Dept. 2007)).A.D.3d 745 (2d. Dept. 2007)).

(BUT GOOD LUCK GETTING OUT ONCE YOUR (BUT GOOD LUCK GETTING OUT ONCE YOUR COMPANY IS NAMED.)COMPANY IS NAMED.)

New York Labor Law Section 240New York Labor Law Section 240Defenses AvailableDefenses Available

Plaintiff’s Own ConductPlaintiff’s Own Conduct

IF ACTIONS OF PLAINTIFF ARE SOLE IF ACTIONS OF PLAINTIFF ARE SOLE PROXIMATE CAUSE OF INJURY, PROXIMATE CAUSE OF INJURY, SECTION 240 INAPPLICABLE SECTION 240 INAPPLICABLE ((WEININGER V HAEDORN, WEININGER V HAEDORN, 91 N.Y.2d 958 91 N.Y.2d 958 (2004)). HOWEVER, VERY FACT (2004)). HOWEVER, VERY FACT SPECIFIC AND COURTS DO NOT LIKE SPECIFIC AND COURTS DO NOT LIKE TO RULE THIS WAY. TO RULE THIS WAY.


Provision of Safety EquipmentProvision of Safety Equipment PLAINTIFF INJURY WOULD NOT HAVE PLAINTIFF INJURY WOULD NOT HAVE

OCCURRED IF USED SAFETY EQUIPMENT OCCURRED IF USED SAFETY EQUIPMENT PROVIDED (PROVIDED (LENIAR V. METRO TRANSIT LENIAR V. METRO TRANSIT AUTHORITYAUTHORITY, 37 A.D.3d 425 (2d Dept. 2007)), 37 A.D.3d 425 (2d Dept. 2007))

GENERALLY QUESTION OF WHETHER GENERALLY QUESTION OF WHETHER SAFETY DEVICE WAS ADEQUATE IS SAFETY DEVICE WAS ADEQUATE IS QUESTION OF FACT UNLESS ESTABLISHED QUESTION OF FACT UNLESS ESTABLISHED AS MATTER OF LAW THAT COLLAPSED, WAS AS MATTER OF LAW THAT COLLAPSED, WAS DEFECTIVE OR WAS IMPROPERLY PLACED DEFECTIVE OR WAS IMPROPERLY PLACED ((NORWOOD V. WHITING-TURNER NORWOOD V. WHITING-TURNER CONSTRUCTIONCONSTRUCTION, 40 A.D.3d 718 (2d Dept. , 40 A.D.3d 718 (2d Dept. 2007))2007))

New York Labor Law Section 240New York Labor Law Section 240Defenses AvailableDefenses AvailableRecalcitrant WorkerRecalcitrant Worker

WHEN DEFENDANT CAN SHOW THAT WHEN DEFENDANT CAN SHOW THAT ACCIDENT SOLELY CAUSED BY ACCIDENT SOLELY CAUSED BY REFUSAL OF PLAINTIFF TO USE REFUSAL OF PLAINTIFF TO USE SAFETY EQUIPMENT, SECTION 240 SAFETY EQUIPMENT, SECTION 240 INAPPLICABLE (INAPPLICABLE (SMITH V. HOOKERSMITH V. HOOKER, 89 , 89 A.D.2d. 361); A.D.2d. 361); CHIMBORAZO V. WCL CHIMBORAZO V. WCL ASSOCIATESASSOCIATES, 37 A.D.3d 394 (2d. Dept. , 37 A.D.3d 394 (2d. Dept. 2007)). 2007)).

New York Labor Law Section 240New York Labor Law Section 240Defenses AvailableDefenses AvailableSuperseding CauseSuperseding Cause

PROVISION OF EVIDENCE THAT EVENT PROVISION OF EVIDENCE THAT EVENT CAUSING PLAINTIFF INJURY NOT CAUSING PLAINTIFF INJURY NOT FORSEEABLE; HANDLED BY COURT IN FORSEEABLE; HANDLED BY COURT IN SAME MANNER AS TYPICAL SAME MANNER AS TYPICAL NEGLIGENCE MATTERS. NEGLIGENCE MATTERS.


Engineer and Architect ExceptionEngineer and Architect Exception

SECTION 240 INAPPLICABLE TO THESE SECTION 240 INAPPLICABLE TO THESE PERSONS SO LONG AS NOT DIRECTING PERSONS SO LONG AS NOT DIRECTING OR CONTROLLING WORK ACTIVITIES OR CONTROLLING WORK ACTIVITIES ((HAMBY V. HIGH STEEL STRUCTURES HAMBY V. HIGH STEEL STRUCTURES INC.INC., 134 A.D.2D 884 (4TH Dept. 2004)). , 134 A.D.2D 884 (4TH Dept. 2004)).

New York Labor Law Section 240New York Labor Law Section 240Summary Judgment and DismissalSummary Judgment and Dismissal

CONSTRUCTION MANAGER ENTITLED CONSTRUCTION MANAGER ENTITLED TO SUMMARY JUDGMENT WHEN ROLE TO SUMMARY JUDGMENT WHEN ROLE WAS ONLY ONE OF GENERAL WAS ONLY ONE OF GENERAL SUPERVISION (SUPERVISION (DELAHAYE V. ST. DELAHAYE V. ST. ANNE’S SCHOOLANNE’S SCHOOL, 40 A.D.3d 679 (2d Dept. , 40 A.D.3d 679 (2d Dept. 2007))2007))

New York Labor Law Section 240New York Labor Law Section 240Summary Judgment and Dismissal,Summary Judgment and Dismissal,

ContinuedContinued

GENERAL CONTRACTOR ENTITLED TO GENERAL CONTRACTOR ENTITLED TO SUMMARY JUDGMENT WHEN PLAINTIFF SUMMARY JUDGMENT WHEN PLAINTIFF ACCIDENT NOT PROXIMATELY CAUSED ACCIDENT NOT PROXIMATELY CAUSED BY STATUTE VIOLATION AND PLAINTIFF BY STATUTE VIOLATION AND PLAINTIFF FAILED TO PROVIDE SUFFICIENT FAILED TO PROVIDE SUFFICIENT EVIDENCE TO RAISE QUESTION OF EVIDENCE TO RAISE QUESTION OF FACT (FACT (CAMLICA V. HANSSON,CAMLICA V. HANSSON, 40 A.D.3d 40 A.D.3d 796 (2d Dept. 2007)). 796 (2d Dept. 2007)).

New York Labor Law Section 240New York Labor Law Section 240Evidentiary IssuesEvidentiary Issues

INCIDENT REPORT MIGHT BE ADMITTED INCIDENT REPORT MIGHT BE ADMITTED AS A BUSINDESS RECORD AT TRIAL AS A BUSINDESS RECORD AT TRIAL ((BUCKLEY V. J.A. JONES/GMOBUCKLEY V. J.A. JONES/GMO, 38 A.D.3D , 38 A.D.3D 461 (1ST Dept. 2007). (I PREFER THAT 461 (1ST Dept. 2007). (I PREFER THAT INCIDENT REPORTS INCIDENT REPORTS ARE PREPAREDARE PREPARED.).)

New York Labor Law Section 241New York Labor Law Section 241PurposePurpose

241 imposes nondelegable duty upon all owners 241 imposes nondelegable duty upon all owners and contractors to provide certain safe and contractors to provide certain safe appurtenances, and safe place to work, for all of appurtenances, and safe place to work, for all of employees at construction site employees at construction site

apparent intention of legislature to place ultimate apparent intention of legislature to place ultimate responsibility for injury on those who are in best responsibility for injury on those who are in best position to insure safety of work place position to insure safety of work place

owner's duty to insure that scaffolding employed at owner's duty to insure that scaffolding employed at work site is constructed, placed, and operated so work site is constructed, placed, and operated so as to give proper protection to employees is wholly as to give proper protection to employees is wholly independent of owner's actual control or independent of owner's actual control or supervision of workplace supervision of workplace


Prior to 1962 the section was phrased in Prior to 1962 the section was phrased in language substantially the same as that language substantially the same as that appearing today.appearing today.

In 1962 the Legislature made direction or In 1962 the Legislature made direction or control a prerequisite to strict liability.control a prerequisite to strict liability.

However, in 1969 the section was amended However, in 1969 the section was amended as it now appears with a reimposition of the as it now appears with a reimposition of the rule of rule of strict liability.strict liability.


Owners of one and two family dwellings are Owners of one and two family dwellings are exempted from the strict liability of Section exempted from the strict liability of Section 241 where they exercise no direction or 241 where they exercise no direction or control.control.

Owners of one and two family dwellings will, Owners of one and two family dwellings will, of course, be liable in any situation where of course, be liable in any situation where they direct or control the work, or where they direct or control the work, or where negligence may otherwise be proved negligence may otherwise be proved against them. against them.

New York Labor Law Section 241New York Labor Law Section 241Application of Section 241Application of Section 241

Applicable to “Construction, excavation, or demolition Applicable to “Construction, excavation, or demolition work”. work”.

Legislature sought to protect workers from industrial Legislature sought to protect workers from industrial accidents specifically in connection with construction, accidents specifically in connection with construction, demolition, or excavation work. If the work constitutes demolition, or excavation work. If the work constitutes “maintenance”, then plaintiff is not entitled to base a claim “maintenance”, then plaintiff is not entitled to base a claim under Section 241. under Section 241. Nagel v. D&R Realty CorpNagel v. D&R Realty Corp., 99 N.Y.2d. ., 99 N.Y.2d. 98 (Ct. of App. 2002). 98 (Ct. of App. 2002).

If defendant can show that plaintiff’s injuries did not arise If defendant can show that plaintiff’s injuries did not arise from construction, excavation or demolition work, then from construction, excavation or demolition work, then defendant is entitled to a dismissal of plaintiff’s Section 241 defendant is entitled to a dismissal of plaintiff’s Section 241 claims. claims. SeeSee e.ge.g. . Holler v. City of New YorkHoller v. City of New York, 38 App. Div. , 38 App. Div. 3d 606 (23d 606 (2ndnd Dept. 2007). Dept. 2007).

New York Labor Law Section 241New York Labor Law Section 241Application of Section 241, Application of Section 241,

ContinuedContinued There must be “control, direction, and There must be “control, direction, and

supervision”. supervision”. If the owner or general contractor does not If the owner or general contractor does not

exercise authority or supervisory control exercise authority or supervisory control over the work site, plaintiff’s Section 241 over the work site, plaintiff’s Section 241 claims may be dismissed. claims may be dismissed. SeeSee e.g.e.g. Berg v. Berg v. Albany Ladder Co., Inc.Albany Ladder Co., Inc., 836 N.Y.S.2d 720 , 836 N.Y.S.2d 720 (3(3rdrd Dept. 2007), and Dept. 2007), and Burnett v. Waterford Burnett v. Waterford Custom Homes, Inc.Custom Homes, Inc., 838 N.Y.S.2d 286 (4, 838 N.Y.S.2d 286 (4thth Dept. 2007).Dept. 2007).

New York Labor Law Section 241New York Labor Law Section 241Violations of Local Code as a Means Violations of Local Code as a Means

of Liabilityof Liability Plaintiff must establish a causal connection Plaintiff must establish a causal connection

between the code violated and the happening of between the code violated and the happening of the accident. the accident.

Violation of the code must be a substantial factor Violation of the code must be a substantial factor in the happening of the accident. in the happening of the accident.

Whether rule applies to the facts is a threshold Whether rule applies to the facts is a threshold issue to be addressed by the court as a matter of issue to be addressed by the court as a matter of law.law.

Whether the code was violated and was a Whether the code was violated and was a proximate cause of the accident will generally be a proximate cause of the accident will generally be a question of fact to be determined by a jury.question of fact to be determined by a jury.

New York Labor Law Section 241New York Labor Law Section 241Violations of Local Code as a Means Violations of Local Code as a Means

of Liability, Continuedof Liability, Continued SeeSee e.g.e.g. Kreamer v. Amsterdam High Kreamer v. Amsterdam High

SchoolSchool, 716 N.Y.S.2d 452 (3, 716 N.Y.S.2d 452 (3rdrd Dept. 2000). Dept. 2000). Court held that code was applicable and Court held that code was applicable and was violated. The violation was a proximate was violated. The violation was a proximate cause of plaintiff’s injury.cause of plaintiff’s injury.

New York Labor Law Section 241New York Labor Law Section 241Notice IssuesNotice Issues

As a general rule, lack of actual or As a general rule, lack of actual or constructive notice of a dangerous condition constructive notice of a dangerous condition is not a defense to a claim under Section is not a defense to a claim under Section 241. 241. SeeSee e.g.e.g. Amirr v Calcagno Constr. Amirr v Calcagno Constr. Co.Co., 684 N.Y.S.2d 280 (2, 684 N.Y.S.2d 280 (2ndnd Dept. 1999), and Dept. 1999), and Rizzuto v L.A. Wenger Contr. Co.Rizzuto v L.A. Wenger Contr. Co., 670 , 670 N.Y.S.2d 816 (1998). N.Y.S.2d 816 (1998).

New York Labor Law Section 241New York Labor Law Section 241Summary Judgment IssuesSummary Judgment Issues

Where a factual issue or dispute exists, summary Where a factual issue or dispute exists, summary judgment must be denied. judgment must be denied.

Where there is no evidence of control, direction or Where there is no evidence of control, direction or supervision, summary judgment is appropriate. supervision, summary judgment is appropriate. SeeSee e.g.e.g. Delahaye v. Saint Anns SchoolDelahaye v. Saint Anns School, 836 , 836 N.Y.S.2d 233 (2N.Y.S.2d 233 (2ndnd Dept. 2007). Court held that Dept. 2007). Court held that construction manager entitled to summary construction manager entitled to summary judgment as the record demonstrated that the role judgment as the record demonstrated that the role of the construction manager was only one of of the construction manager was only one of general supervision, which was insufficient to general supervision, which was insufficient to impose liability. impose liability.

New York Labor Law Section 241New York Labor Law Section 241Covered Activities and PeopleCovered Activities and People

Section 241 covers work which involves Section 241 covers work which involves “construction or excavation”. “construction or excavation”.

Injury which occurs while performing activity not Injury which occurs while performing activity not involved in construction or excavation is not involved in construction or excavation is not covered by section 241. covered by section 241. SeeSee e.g.e.g. Malczewski v Malczewski v Cannon Design, Inc.Cannon Design, Inc., 510 N.Y.S.2d 339 (4, 510 N.Y.S.2d 339 (4thth Dept. Dept. 1986). Court held that employee injured while 1986). Court held that employee injured while moving computer equipment was not performing moving computer equipment was not performing construction or excavation, and section 241 did construction or excavation, and section 241 did not apply.not apply.

New York Labor Law Section 241New York Labor Law Section 241Covered Activities and PeopleCovered Activities and People

Protection of SectionProtection of Section 241 extends to employees 241 extends to employees present at worksite, even if they are not engaged present at worksite, even if they are not engaged in actual construction. in actual construction. Williamson v Borg Florman Williamson v Borg Florman Dev. CorpDev. Corp., 594 N.Y.S.2d 778 (1., 594 N.Y.S.2d 778 (1stst Dept. 1993). Dept. 1993).

Neither plaintiff's allegedly improper conduct in Neither plaintiff's allegedly improper conduct in obtaining his employment nor his status as illegal obtaining his employment nor his status as illegal alien barred him from maintaining suit for personal alien barred him from maintaining suit for personal injuries based on asserted violations of Section injuries based on asserted violations of Section 241. 241. Mazur v Rock-McGraw, IncMazur v Rock-McGraw, Inc., 666 N.Y.S.2d ., 666 N.Y.S.2d 939 (2939 (2ndnd Dept. 1998). Dept. 1998).

New York Labor Law Section 241New York Labor Law Section 241Covered Activities and People, Covered Activities and People,

ContinuedContinued Plaintiff, employee of company retained by Plaintiff, employee of company retained by

construction manager to inspect steel work and construction manager to inspect steel work and fireproofing at construction project, was person fireproofing at construction project, was person entitled to protection of Section 241 where he went entitled to protection of Section 241 where he went to construction site to inspect steel columns for to construction site to inspect steel columns for rust, dirt, or other materials which might prevent rust, dirt, or other materials which might prevent fireproofing from adhering to steel surface. fireproofing from adhering to steel surface. Crowther v City of New YorkCrowther v City of New York, 692 N.Y.S.2d 439 , 692 N.Y.S.2d 439 (2(2ndnd Dept. 1999). Dept. 1999).


ContinuedContinued General contractor and gas company were General contractor and gas company were

entitled to dismissal of cause of action under entitled to dismissal of cause of action under Section 241 to recover for injuries sustained Section 241 to recover for injuries sustained in slip and fall on gravel during in slip and fall on gravel during disembarkation from bus at intersection that disembarkation from bus at intersection that was under construction since bus was under construction since bus passenger is not member of special class of passenger is not member of special class of persons protected by statute. persons protected by statute. Neely v Neely v BuffaloBuffalo, 569 N.Y.S.2d 252 (4, 569 N.Y.S.2d 252 (4thth Dept. 1991). Dept. 1991).


ContinuedContinued Night watchman who fell through opening in Night watchman who fell through opening in

floor at building owned by his employer, floor at building owned by his employer, which was undergoing renovations, was not which was undergoing renovations, was not entitled to protection under Section 241. entitled to protection under Section 241. Blandon v Advance Contr. Co.Blandon v Advance Contr. Co., 695 , 695 N.Y.S.2d 36 (1N.Y.S.2d 36 (1stst Dept. 1999). Dept. 1999).


ContinuedContinued Non-employees are typically not a person Non-employees are typically not a person

“employed” within the meaning of Section 241. “employed” within the meaning of Section 241. SeeSee e.g.e.g. Tobias v DiFazio Elec., Inc.Tobias v DiFazio Elec., Inc., 732 , 732 N.Y.S.2d 441(2N.Y.S.2d 441(2ndnd Dept. 2001). Dept. 2001).

Volunteers typically are not covered by Section Volunteers typically are not covered by Section 241. 241. SeeSee e.g.e.g. Alver v. DuarteAlver v. Duarte, 439 N.Y.S.2d 501 , 439 N.Y.S.2d 501 (3(3rdrd Dept. 1981). (Holding section 241, pertaining Dept. 1981). (Holding section 241, pertaining to the duty to provide a safe place of employment, to the duty to provide a safe place of employment, does not furnish a cause of action to a man who does not furnish a cause of action to a man who fell from a porch roof while working on a volunteer fell from a porch roof while working on a volunteer basis without pay in assisting his daughter and basis without pay in assisting his daughter and son-in-law with construction of a house.)son-in-law with construction of a house.)

New York Labor Law Section 241New York Labor Law Section 241Liability of Particular Entities Under Liability of Particular Entities Under

the Statute - Ownerthe Statute - Owner

Generally, Section 241 applies to owner of Generally, Section 241 applies to owner of land and/or building.land and/or building.

Liability under Section 241 lies against Liability under Section 241 lies against owner of land on which building is located, owner of land on which building is located, notwithstanding that owner may not own notwithstanding that owner may not own building itself. building itself. Cannino v Locust Valley Fire Cannino v Locust Valley Fire Dist.Dist., 661 N.Y.S.2d 240 (2, 661 N.Y.S.2d 240 (2ndnd Dept. 1997). Dept. 1997).


the Statute - Homeownerthe Statute - Homeowner

Generally, Section 241 does not apply to owners of one Generally, Section 241 does not apply to owners of one and two family dwellings unless owner directs or controls and two family dwellings unless owner directs or controls the work.the work.

SeeSee e.ge.g. . Pesa v. GinsbergPesa v. Ginsberg, 589 N.Y.S.2d 330 (1, 589 N.Y.S.2d 330 (1stst Dept. Dept. 1992). Owner of single-family dwelling was properly 1992). Owner of single-family dwelling was properly granted summary judgment dismissing action under granted summary judgment dismissing action under Section 241 brought by painter who was injured while Section 241 brought by painter who was injured while attempting to move furniture in course of performing attempting to move furniture in course of performing painting contract since offering suggestions, lending tools, painting contract since offering suggestions, lending tools, pointing out areas that need to be painted, and selecting pointing out areas that need to be painted, and selecting paint to be used was insufficient to cast homeowner in paint to be used was insufficient to cast homeowner in liability.liability.

New York Labor Law Section 241New York Labor Law Section 241Liability of Particular Entities Under Liability of Particular Entities Under the Statute – General Contractorthe Statute – General Contractor

Typically a general contractor and owner are Typically a general contractor and owner are vicariously liable under Section 241 without vicariously liable under Section 241 without regard to their own fault. regard to their own fault.

General contractor has a duty to comply General contractor has a duty to comply with all applicable codes and regulations with all applicable codes and regulations regarding the construction project.regarding the construction project.

SeeSee e.g.e.g. Farina v Plaza Constr. Co.Farina v Plaza Constr. Co., 655 , 655 N.Y.S.2d 952 (1N.Y.S.2d 952 (1stst Dept. 1997). Dept. 1997).


the Statute – Subcontractorthe Statute – Subcontractor

Although Section 241 does not expressly Although Section 241 does not expressly apply to subcontractors, if subcontractor is apply to subcontractors, if subcontractor is delegated authority to supervise and control delegated authority to supervise and control work he/she thus became statutory agent of work he/she thus became statutory agent of contractor. contractor. SeeSee e.g.e.g. Leon v J & M Peppe Leon v J & M Peppe Realty Corp.Realty Corp., 596 N.Y.S.2d 380 (1, 596 N.Y.S.2d 380 (1stst Dept. Dept. 1993). 1993).

New York Labor Law Section 241New York Labor Law Section 241Liability of Particular Entities Under Liability of Particular Entities Under the Statute – Governmental Entitythe Statute – Governmental Entity

Section 241 does not apply to governmental Section 241 does not apply to governmental entities where the entity does not own the property entities where the entity does not own the property in question and does not supervise or control the in question and does not supervise or control the construction.construction.

SeeSee e.g.e.g. Kowalska v Board of Educ.Kowalska v Board of Educ., 688 N.Y.S.2d , 688 N.Y.S.2d 598 (2598 (2ndnd Dept 1999). Court held that N.Y. Board of Dept 1999). Court held that N.Y. Board of Education was not liable for plaintiff’s injuries Education was not liable for plaintiff’s injuries because the Board did not own the property and because the Board did not own the property and the construction project was under control of the construction project was under control of authority that was not party to action. authority that was not party to action.

Contribution and Indemnification,Contribution and Indemnification,GenerallyGenerally

LABOR LAW 240 AND 241 IMPOSE A LABOR LAW 240 AND 241 IMPOSE A NON-DELEGABLE DUTY ON ALL NON-DELEGABLE DUTY ON ALL CONTRACTORS, OWNERS AND THEIR CONTRACTORS, OWNERS AND THEIR AGENTS. DUTY CAN BE ASSIGNED TO AGENTS. DUTY CAN BE ASSIGNED TO ANOTHER BUT LIABILITY TO INJURED ANOTHER BUT LIABILITY TO INJURED WORKER STILL REMAINS WITH THE WORKER STILL REMAINS WITH THE CONTRACTOR, OWNERS AND THEIR CONTRACTOR, OWNERS AND THEIR AGENTS. AGENTS.

Contribution and Indemnification,Contribution and Indemnification,GenerallyGenerally

CONTRIBUTORY NEGLIGENCE OF CONTRIBUTORY NEGLIGENCE OF PLAINTIFF IS PLAINTIFF IS NOTNOT A DEFENSE AS A DEFENSE AS STATUTE IMPOSES ABSOLUTE STATUTE IMPOSES ABSOLUTE LIABILITY ON OWNER TO PROVIDE LIABILITY ON OWNER TO PROVIDE APPROPRIATE SAFETY DEVICES APPROPRIATE SAFETY DEVICES ((LAFLEUR V. CONSOLIDATED EDISONLAFLEUR V. CONSOLIDATED EDISON, , 245 A.D.2d 36 (2d Dept. 2004)).245 A.D.2d 36 (2d Dept. 2004)).

IndemnificationIndemnification(The abyss)(The abyss)

VICARIOUS LIABILITY AND SEEKING REIMBURSMENT VICARIOUS LIABILITY AND SEEKING REIMBURSMENT FROM THE ULTIMATE WRONGDOERFROM THE ULTIMATE WRONGDOER

UNDER CPLR SECTION 14, OWNER HAS LEGAL RIGHT UNDER CPLR SECTION 14, OWNER HAS LEGAL RIGHT TO REIMBURSMENT FOR DAMAGES TO PLAINTIFF TO REIMBURSMENT FOR DAMAGES TO PLAINTIFF FROM ALL CONTRACTORS WHO ASSUMED FROM ALL CONTRACTORS WHO ASSUMED RESPONSIBILITY TO PERFORM WORK GIVING RISE RESPONSIBILITY TO PERFORM WORK GIVING RISE TO PLAINTIFF INJURY (TO PLAINTIFF INJURY (MAS V. TWO BRIDGES MAS V. TWO BRIDGES ASSOCIATIONASSOCIATION, 75 N.Y.2d 680 (1998)). OWNER MUST , 75 N.Y.2d 680 (1998)). OWNER MUST BE ZERO LIABLE. BE ZERO LIABLE.

FOR COMMON LAW INDEMNIFICATION, SEE FOR COMMON LAW INDEMNIFICATION, SEE NASSAU NASSAU ROOFING AND SHEET METAL CO V. FACILITIES DEV. ROOFING AND SHEET METAL CO V. FACILITIES DEV. CORP.CORP., 125 A.D.2D 754 (2d. Dept. 2002)., 125 A.D.2D 754 (2d. Dept. 2002).

Documents

New Developments In New York Labor Law Sections 200, 240 & 241 Stephen Wellinghorst, Esquire Wellinghorst & Fronzuto, L.L.C. 4 Franklin Avenue Ridgewood,