Tag Archives: Labor Law §240(1)

Recent talk by Anthony Gair on the current state of New York construction accident law.

Watch Anthony Gair discuss Labor Law 240(1). It is from, December 9, 2011 and is just under 50 minutes.  So grab a sandwich and learn while you eat at your desk.  Click here to get started.

*When is an Owner not an Owner for Labor Law §241(6) Purposes? And When is a Non-owner an Owner for Labor Law §241(6) Purposes?

In Scaparo v Village of Ilion decided on December 1, 2009, a unanimous Court of Appeals set forth the standard for who is an owner under Labor Law §241(6), when the owner did not contract for the work performed on its property, by relying upon a case that set the standard in a Labor Law §240(1 ) case.

“In cases imposing liability on a property owner who did not contract for the work performed on the property, this Court has required “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]). Here, although the accident occurred on HCIDA’s property, HCIDA did not contract with the Village of Frankfort to have the sewer lateral installed, it had no choice but to allow the Village to enter its property pursuant to a right-of-way, and it did not grant the Village an easement or other property interest creating the right-of-way.”

They also discussed the circumstance when a non titleholder can be an owner under Labor Law §241(6), however finding that not to be the case in this case.

“Courts have held that the term “owner” is not limited to the titleholder of the property where the accident occurred and encompasses a person “who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit” (Copertino v Ward, 100 AD2d 565, 566 [2d Dept 1984]; see also Reisch v Amadori Constr. Co., 273 AD2d 855, 856 [4th Dept 2000]). Here, although the Church agreed to pay for the cost of materials, the Church had no interest in the property over which the sewer lateral was placed. Notably, municipal employees working at the site testified that no representative from the Church was present at, or gave directions during, the excavation work. Moreover, the testimony adduced indicated that the Village assumed full responsibility for installing the lateral sewer line and acknowledged that the lateral would be available for use by future property owners in the area who wished to connect to the Village sewer system.”

The lower court decision can be found here.

I note that I am using a new service of Google, Google Scholar to link some of the decisions cited above. With Google Scholar you can search articles, theses, books, abstracts and court opinions, from academic publishers, professional societies, online repositories, universities and other web sites.

*The One or Two-family Dwelling Exception in Labor Law §§ 240 and 241. II – Dwelling

In Dineen v Rechichi decided on November 13, 2009, The Fourth Department was are asked to determine whether defendants were entitled to the exemption from liability afforded to owners of one- and two-family dwellings under Labor Law § 240 (1) and § 241 (6) where plaintiff seeks damages for injuries he sustained while repairing a barn on defendants’ property, which did not contain a single-family dwelling at the time of the accident.

The court held “that the homeowner exemption applies to defendants because they intended to build a single-family residence on the property at the time of the accident and the barn was used solely for residential purposes.

“… When defendants purchased the undeveloped property in 2001, they planned to build a home, a barn and a pond on a six-acre parcel of the property. In February 2003, defendants hired plaintiff, a self-employed carpenter, to construct a pole barn on the property. On June 17, 2003, plaintiff fell from a ladder while inspecting the roof of the barn for leaks. At the time of the accident, the barn was the only structure located on the property, although defendants subsequently constructed a single-family home on the property.

Plaintiff commenced this action asserting causes of action for violations of Labor Law §§ 200, 240 (1) and § 241 (6), … Plaintiff … consented to dismissal of the section 200 cause of action. … The [trial] court determined with respect to sections 240 (1) and 241 (6) of the Labor Law that defendants were entitled to the homeowner exemption …

Sections 240 (1) and 241 of the Labor Law both exempt from liability ‘owners of one[-] and two-family dwellings who contract for but do not direct or control the work . . . .’ Here, it is undisputed that defendants did not direct or control plaintiff’s work, and defendants concede that plaintiff is a covered worker under Labor Law § 240 (1) and § 241 (6). Thus, the sole question presented on this appeal is whether defendants are entitled to the benefit of the statutory exemption for owners of one- and two-family dwellings (see § 240 [1]; § 241 [6]), despite the fact that plaintiff was injured during the construction of a barn and defendants’ residence had not yet been constructed at the time of the accident. Although this case involves somewhat novel facts, we conclude that the court properly determined that defendants are entitled to the benefit of the homeowner exemption and are therefore exempt from liability under Labor Law § 240 (1) and § 241 (6).

The statutes do not define ‘dwelling.’ In light of the remedial purpose of the amendments, however, the Court of Appeals has cautioned against applying ‘an overly rigid interpretation of the homeowner exemption and [instead has] employed a flexible site and purpose’ test to determine whether the exemption applies’ (Bartoo, 87 NY2d at 367-368). Under that test, ‘whether the exemption is available to an owner in a particular case turns on the site and purpose of the work’ (Cannon v Putnam, 76 NY2d 644, 650; see also Trala v Egloff, 258 AD2d 924).

As an initial matter that, although plaintiff’s accident occurred during the construction of a barn rather than a residence, that fact does not by itself bar application of the homeowner exemption. The courts have not limited the application of the homeowner exemption solely to work performed on the residential structure itself. Indeed, a barn, a garage, or other ancillary structure located on property that also contains a residence clearly falls within the definition of a ‘dwelling’ as interpreted by the courts, so long as the structure serves a residential purpose … As the Court of Appeals reasoned in Bartoo, ‘the fact that the work was performed on the barn and not on the residential home itself does not alter the analysis; the barn, located on [the defendant’s] property and used in part for personal storage purposes, is akin to a garage and should be considered an extension of the dwelling within the scope of the homeowner exemption’ (87 NY2d at 369). Here, defendant husband testified at his deposition that he used the barn to store household goods, a tractor, an all-terrain vehicle (ATV) and other personal items unrelated to his upholstery business.

… we conclude that ‘the remedial purposes and protective goals underlying the 1980 amendments to Labor Law § 240 (1) and § 241 are best served by extending the dwelling-owner exemption to defendant[s’] situation’ (Cannon, 76 NY2d at 651). In our view, the fact that defendants hired plaintiff to build the barn prior to building their home does not deprive them of the benefit of the homeowner exemption inasmuch as the record establishes that defendants intended to build a single-family dwelling on the property and had taken steps to effectuate that plan prior to plaintiff’s accident.

It is well established that the ‘site and purpose’ test ‘must be employed on the basis of the homeowners’ intentions at the time of the injury underlying the action’ (Allen v Fiori, 277 AD2d 674, 675; see Davis v Maloney, 49 AD3d 385; Pastella v R.S. Hulbert Bldrs., 305 AD2d 998, 999; Moran v Janowski, 276 AD2d 605, 606).

To the extent that plaintiff contends that the status of defendant husband as a small business owner removes him from the class of unsophisticated persons that the homeowner exemption is designed to protect, we note that there is no “separate degree of sophistication’ ” analysis under Labor Law §§ 240 and 241 (Sweeney v Sanvidge, 271 AD2d 733, 735, lv dismissed 95 NY2d 931). In any event, that contention lacks merit (see Allen, 277 AD2d at 675).

*The One or Two-family Dwelling Exception in Labor Law §§ 240 and 241. I – Direction and Control

On November 24, 2009, in Affri v Basch, the Court of Appeal was presented with the issue of “whether defendants exercised sufficient direction and control over plaintiff’s work to overcome the one or two-family dwelling exception found in Labor Law §§ 240 and 241.”

In an opinion by Judge Pigott, with Judges Graffeo, Read and Smith concurring, the Court held that they did not and therefore affirmed the order of the Appellate Division, 2nd Department which had reversed the lower court. Chief Judge Lippman dissented and voted to reverse the Appellate Division, with Judges Ciparick and Jones concurring.

“Defendants hired plaintiff, a neighbor who had previously done small jobs for them, to perform renovations to an apartment within their home. The work included, as relevant to this appeal, the installation of appliances. Plaintiff fell from a ladder while installing a vent on the roof and suffered injuries that required several surgeries.

Plaintiff brought this action against defendants, alleging violations of Labor Law §§ 200, 240 (1) and 241 (6) and common law negligence. …

Labor Law § 240 provides in pertinent part as follows:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, …

A similar homeowner’s exemption is found in Labor Law § 241.

… We have previously stated that whether a defendant’s conduct amounts to direction and control depends upon the degree of supervision exercised over “the [method and manner in which the work is performed” (Duda v Rouse Constr. Corp, 32 NY2d 405, 409 [1973]).

Here, defendants’ participation was limited to discussion of the results the homeowner wished to see, not the method or manner in which the work was then to be performed. Defendants’ direction to plaintiff to place a vent through the roof was simply an aesthetic decision. Defendants did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Further, defendants did not provide the plaintiff with any equipment or work materials, nor were they even present at the time plaintiff undertook the venting work. Rather, both the method and the manner of plaintiff’s work were left to his judgment and experience.

Plaintiff’s affidavit indicating that he expressed reluctance to go on the roof because of concern for his safety is insufficient to raise an issue of fact. Although plaintiff claims that he did not want to go up on the roof to run the vent because he was working alone, he proceeded to do so—not at the specific direction of defendants but of his own volition to complete the work.

For the same reasons, defendants were entitled to summary judgment dismissing the causes of action pursuant to Labor Law § 200 and for common law negligence because defendants exercised no supervisory control over the activity bringing about the injury (see Lombardi v Stout, 80 NY2d 290, 295 [1992]).

Judge Lippman’s dissent is helpful in setting forth what happened and thus what is insufficient to defeat the homeowner’s exception. In his opinion Judge Lippman said “plaintiff asserts that when he told Mr. Basch that in order to move a sink to Basch’s preferred location he would need to cut a beam that supported the house, defendant instructed him to cut the beam. Basch told plaintiff to place the washer-dryer vent through the roof, rather than through the window, after plaintiff expressed reservations about the safety of that procedure …

*Is a Non-Permanently Moored Barge a Vessel and Does 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act Preempts New York State Labor Law §§ 240(1) and 241(6) Claims

In Lee v. Astoria Generating**, decided November 23, 2009, in an opinion by Judge Jones the Court of Appeals was

“called upon to determine whether a barge containing an electricity generating turbine is a vessel under 33 USC § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) and whether that provision preempts New York State Labor Law §§ 240(1) and 241(6) claims. We hold that the barge is a vessel and plaintiff’s Labor Law §§ 240(1) and 241(6) claims are preempted.

Although the LHWCA does not define “vessel,” the United States Supreme Court has provided detailed guidance concerning the definition and characteristics of a vessel, holding that the statutory definition of the term in 1 USC § 3 is applicable in this context.

A “‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water” (Stewart v Dutra Construction Company, 543 US 481, 489 [2005], quoting 1 USC § 3). Structures temporarily stationed in a particular location maintain their status as vessels. However, floating structures that are “not practically capable of being used as a means of transportation” do not qualify as vessels (id. at 493 [internal quotation marks and citation omitted]). Such floating structures (non-vessels) are permanently fixed or moored “to shore or resting on the ocean floor” (id. at 493-494).
Here, the barge, located on navigable waters in the Gowanus Bay, is a vessel within the LHWCA. The barges owned by Astoria/Orion have been tugged on water approximately once a decade to a maintenance station and, at least once, to provide energy to another part of New York City in an emergency. Thus, the barge at issue is practically capable of being used as a means of transportation on water. Although the barge is stationed at the Gowanus facility, because it is not permanently anchored or moored, it has not lost its status as a vessel. Accordingly, the barge is a vessel under section 905(b).

The remaining issue is whether section 905(b) preempts plaintiff’s Labor Law §§ 240(1) and 241(6) claims. It is well recognized that the Supremacy Clause (U.S. Const., art VI, cl.2) “‘may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law'” (Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006], quoting New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645, 654 [1995]). Congress’ intent to preempt “may be explicitly stated in the statute’s language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law (Cipollone v Liggett Group, Inc., 505 US 504, 516 [1992]). State law will not “be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress” (New York State Conference of Blue Cross & Blue Shield Plans, 514 US at 655).

Here, the LHWCA clearly states in section 905(b) that an action in negligence may be brought against a vessel and that such remedy “shall be exclusive of all other remedies against the vessel except remedies available under this chapter” (33 USC § 905[b]). Congress clearly intends that actions maintained against a vessel be brought solely within the confines of the LHWCA and nowhere in the Act does it permit strict liability claims, as provided in Labor Law §§ 240(1) and 241(6). Therefore, section 905(b) of the LHWCA expressly preempts plaintiff’s Labor Law §§ 240(1) and 241(6) claims. … While it is true that Federal maritime law does not generally supersede state law (see Cammon, 95 NY2d at 587), in this case, where Congress explicitly limited claims against the vessel owner to that Federal Act, state law claims are preempted.”

Judge Ciparick dissented in an opinion in which Chief Judge Lippman concurred and voted to affirm the lower Court’s decision, permitting the Labor Law claims to survive and granting plaintiff partial summary judgment on the 240 (1) claim. After concluding that plaintiff did not have a cause of action for vessel negligence under maritime law, she wrote that,

“The plain language of section 905 (b) makes recovery under that section the “exclusive remedy” where an injured employee has a cause of action for vessel negligence (33 USC 905 [b]). However, where, as here, the injured employee has no cause of action for vessel negligence under maritime law, section 933 of the LHWCA expressly recognizes and preserves state law causes of actions against third parties, including vessel owners who are not also employers.”

**In the spirit of full disclosure, I must reveal that appellants counsel, Barbara Goldberg is a partner of a good friend of mine, Kenneth Mauro of Mauro Goldberg & Lilling LLP – Update – These appellants were also represented by my old office, known at the time as Robin, Schepp, Yuhas & Harris and handled by Brian Liferidge