View this article online: https://www.insurancejournal.com/news/east/2005/12/27/63520.htm
In a recent case involving millions in potential damages, the Supreme Court of the State of New York (County of Nassau) ruled that an employee who was involved in routine maintenance was not entitled to certain protections under New York’s Labor Law.
The employee had fallen off a 20-foot ladder, and suffered severe injuries, including brain damage.
Attorneys from Traub Eglin Lieberman Starus LLP represented the employer and, on motion for summary judgment, were able to demonstrate to the court that because the employee was not making substantial changes to the building, he was not entitled to extraordinary protections under New York’s Labor Law.
The court agreed, and dismissed the entire case with prejudice.
Attorneys Robert Leff and Denis Farrell of TELS, who represented Regent Properties, argued that New York Labor Law only applies to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The Labor Law does not apply to “routine maintenance” activities.
The attorneys characterized the decision as “encouraging” for employers in that it arguably demonstrates that the trend of restricting the reach of the Labor Law as set forth in recent decisions of the New York State Court of Appeals is having an impact at the trial level.
While open to interpretation, TELS attorneys said this case and others like it may demonstrate a trend towards a narrowing, more restrictive view of the Labor Law.
The defendant in this case was Montauk Properties, owner of a shopping center which included a store that had been vacant for approximately 15 years. Montauk Properties retained Regent Management to work as the property manager for the development.
One of Regent’s employees was trying to stuff small pieces of insulation into three small cracks in the wall of the vacant store. These pieces of insulation were about the size of a standard letter-size piece of paper. Neighboring tenants had requested the insulation, since birds were getting into their store from cracks in the wall.
On the very same day, several Regent employees were working in the basement of the store dismantling a boiler. Only six months before, the interior sheetrock walls of the store had been removed.
The Regent employee used a 20 foot extension ladder to install these paper-size pieces of insulation. He placed the ladder against the wall below a crack near the ceiling. After ascending the ladder, the bottom suddenly slid away, causing the employee to fall nearly 20 feet, sustaining severe injuries and brain damage.
The employee who fell eventually sued Montauk Properties, asserting violations of New York State Labor Law §240(1), §241(6) and §200, as well as common law negligence. Upon closer examination of Regent’s liability coverage, Montauk qualified as an additional insured. Montauk then commenced a third-party action against Regent seeking contractual indemnification for any judgment above the carrier’s policy limit, which was $1 million.
While the motion for dismissal was pending, the plaintiff made a policy limit demand from Regent’s insurance carrier, and sought additional funds from Montauk’s primary insurance carrier. Montauk’s insurer demanded that Regent’s insurance carrier settle the matter within its policy limit.
In the end, the trial court granted Regent’s motion dismissing the case in its entirety. In dismissing the case, the court noted that the Labor Law only applies to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The court determined that based on the evidence submitted, the plaintiff was not engaged in any of these activities but was performing “routine maintenance.”
The court held that an application of a small amount of insulation into a space with one’s hands is not a significant physical change to the building’s configuration or composition so as to constitute an alteration under the Labor Law.
As to the plaintiff’s argument that his activities were part of a larger renovation project, to the extent the store had been “gutted,” that had occurred over six months prior to the accident and, thus, had no connection to plaintiff’s activities on that day.
The case was James v. Montauk Properties, LLC., et ano. (Court Index No. 6558/04).
Source: TELS