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A dispute between a stagehand injured on the job and her employer has triggered the second contentious labor-law opinion by an appeals court in less than a month. In a 3-2 ruling, New York’s Appellate Division, 1st Department, found last week that the stagehand’s employer was not strictly liable for her injuries because her work did not constitute construction under the scaffolding law. The woman, Tracy Adair, was focusing lights over a temporary stage at Wollman Ice Skating Rink in Central Park when the lift on which she was standing fell over. The 1st Department said that Adair’s employer, Bestek Lighting and Staging Corp., was not absolutely liable for her injuries under Labor Law � 240(1) because the lights were fully installed and all other construction work on the stage had been completed. Two justices said that focusing the lights was a required step in constructing a stage that had yet to be used, but the majority rejected that notion and said the dissent was relying on 1st Department rulings that should be disregarded in light of the New York Court of Appeals ruling in Martinez v. City of New York, 93 NY2d 322 (1999). In Martinez, the court held that “the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’” to fall under � 240(1). TEST REJECTED The court rejected a test by which courts would determine if a worker’s actions were “integral and necessary” to the construction, saying it improperly expanded � 240(1) beyond its clear terms. The ruling in Adair v. Bestek Lighting and Staging Corp., 5367, marks the second time in less than a month that the 1st Department has grappled with what constitutes construction and the meaning of Martinez. In Campisi v. Epos Contracting Corp., 5803, a majority of the court found that a construction superintendent employed by the city of New York should receive the full protection of the scaffolding law because his work was part of the construction process. The majority in Campisi — Justices Betty Weinberg Ellerin, Angela M. Mazzarelli and Richard T. Andrias — were opposed by Justices Peter Tom and George D. Marlow, who said the majority interpretation of the law was too broad and should not include a superintendent who was responsible only for observing progress at a construction site. But in Adair last week, Justice Mazzarelli, joined by Justice Eugene L. Nardelli, found herself in the minority and citing Campisi in defense of her position. She was opposed by Justices Andrias, who sided with her in Campisi, Presiding Justice Milton L. Williams and Justice David Friedman. Citing Campisi, Justice Mazzarelli said a construction task — erecting a temporary stage — was under way when Adair was injured, giving her the right to the protections of � 240(1). The majority, however, said that the construction was complete and that the only way Adair’s work would be covered by the scaffolding law would be if the court used the now obsolete test to deem it integral, necessary or incidental. “There is no other way to bring the activity in question within the scope of the statute,” the majority wrote, adding, “We decline to rewrite the statute in disregard” of the Court of Appeals’ “admonition” in Martinez. FAULTY REASONING The majority also said that the following opinions, which incorporate the faulty reasoning, should no longer be relied upon: Aubrecht v. Alcme Elec. Corp., 262 AD2d 994; Johnson v. Rapisardi, 262 AD2d 365; and Binetti v. MK West St. Co., 239 AD2d 214. Michael J. Asta represented Adair. Jeffrey Fahys and James G. Kelly represented Bestek Lighting.

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