Routine maintenance not covered by labor law, N.Y. court rules

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 Straus LLP represented the employer and, on motion for summary judgment, argued that because the employee was not making substantial changes to the building, he was not entitled to the protections under the labor law. The court agreed and dismissed the entire case.

Attorneys Robert Leff and Denis Farrell of TELS, who represented Regent Properties, argued that the labor law only applies to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” and that it does not apply to “routine maintenance” activities.

The attorneys characterized the dismissal as “encouraging” for employers in that it suggests 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. TELS attorneys said this case might signal a more restrictive view of the law.

Property management
The defendant in this case was Montauk Properties, owner of a shopping center that included a store that had been vacant for 15 years. Montauk Properties retained Regent Management as the property manager for the development.

One of Regent’s employees was trying to stuff small pieces of insulation into small cracks in the wall of the vacant store. Neighboring tenants had requested it, 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 prior to that, the interior sheetrock walls of the store had been removed.

The Regent employee used a 20-foot extension ladder to install the 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.

In dismissing the case, the court determined the plaintiff was not engaged in any major activity that might be covered under the law 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 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).