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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: September 1, 2021

Worker Injured While Replacing Fan in Building that Required Replacement “All the Time” Cannot Sue Under Labor Law § 240(1)

On July 28, 2021, the Second Department issued a decision in Stockton v. H&E Biffer Enters. No. 2, LLC, 2021 NY Slip Op 04568, affirming dismissal of a personal injury claim under Labor Law § 240(1) on summary judgment holding that an employee injured while preforming “routine maintenance” could not state a cause of action, explaining:

To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish, among other things, that he or she was injured during the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (see Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652-653). “In determining whether a particular activity constitutes ‘repairing,’ [*2] courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)” (id. at 653, citing Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 528). “Generally, courts have held that work constitutes routine maintenance where the work involves ‘replacing components that require replacement in the course of normal wear and tear'” (Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 AD3d at 653, quoting Esposito v. New York City Indus. Dev. Agency, 1NY3d at 528; see Gonzalez v. Woodbourne Arboretum, Inc., 100 AD3d 694, 697).

Here, the defendants established, prima facie, that the replacement of the condenser fan motor, which, according to the deposition testimony of the injured plaintiff’s employer, weighed approximately 1½ pounds and was the kind of part that required replacement “all the time,” constituted routine maintenance and not repairing, or any of the other enumerated activities under Labor Law § 240(1) (see Esposito v New York City Indus. Dev. Agency, 1NY3d at 528; Tserpelis v. Tamares Real Estate Holdings, Inc., 147 AD3d 1001, 1002). “The work here involved replacing [a] component[ ] that require[s] replacement in the course of normal wear and tear” (Esposito v. New York City Indus. Dev. Agency, 1 NY3d at 528). In opposition, the plaintiffs failed to raise a triable issue of fact.

The attorneys at Schlam Stone & Dolan frequently litigate cases under the New York Labor Law.

Contact our attorneys at commercialdivisionblog@schlamstone.com if you or a client have questions regarding the New York Labor Law or other employment-related issues.

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