Two authors recently averred in this publication that the First and Second Departments had split on the question of whether Labor Law §240, commonly but misleading known as the Scaffold Law, could apply when a worker was injured “while legitimately on a construction site” but while going to or coming from lunch or engaged in some similar activity. Megan E. Yllanes and Andrew L. Richards, First and Second Departments Differ on Issue of Workers Injured While on Break or Entering/Exiting a Construction Site, NYLJ (April 15, 2019). As they saw it, “injuries sustained by a worker who is not performing work duties or that occur outside regular working hours” were “protected by §240(1)” in the First Department. In “stark contrast,” they wrote, “[t]he Second Department has held that injuries sustained at a time when a worker is not performing work duties or occurs outside regular work hours are not protected by Labor Law §240(1).”

Such is one way of reading the case law. However, I personally believe the so-called split is largely in the eye of the beholder and the rule in both departments—indeed, in all four departments—is more nuanced. That the plaintiff was injured while on his or her way to lunch should not of itself be disqualifying in any department in light of the governing Court of Appeals’ rulings. However, the situation can change, in any department, when we add additional facts including, for example, that the injury occurred off-site, outside of working hours, or after completion of the covered work.

The Court of Appeals’ Rulings