Labor Law §240(1) requires site owners and “contractors” to provide certain listed devices (including “scaffolds,” “ladders,” and “other devices”) and to “cause” those devices to be “so constructed, placed and operated as to give proper protection.” Its sister statute, Labor Law §241(6), ostensibly requires the work site to be so “arranged, operated and conducted” as to provide “reasonable and adequate protection and safety.” However, as construed by the courts, Labor Law §241(6) requires only that site owners and contractors comply with those parts of the state construction regulations (12 NYCRR 23-1.1 et seq.) that are sufficiently specific or “concrete.”1

Both statutes are codified in Article 10 of the Labor Law, titled “Building Construction, Demolition and Repair Work.”

From this, one might reasonably conclude that however broadly or narrowly one construes the terms “construction,” “demolition,” and “repair,” any given project that falls within the scope of one of the statutes will also fall within the scope of the other. One might likewise conclude that any project that does not fall within the ambit of one statute will also not fall within the ambit of the other.

Yet, while those assumptions might be reasonable, they are also flat-out wrong. As the Court of Appeals confirmed earlier this year, the scope of Labor Law §240(1) is in some respects much broader than that of its sister statute.

Labor Law §240(1)

Labor Law §240(1) is self-defining in the sense that the statute itself lists the activities to which it applies. Those activities are “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”

While those statutorily listed activities are simple terms with commonly accepted meanings, difficult questions can nonetheless arise. Take “painting,” for example. Everyone knows what “painting” is. What could be simpler? But what if the plaintiff was wallpapering rather than applying paint? What if plaintiff was applying a floor finishing product rather than paint? Do those activities count as “painting”? The Court of Appeals ruled several years ago that wallpapering is not “painting,”2 but the Appellate Division, Second Department, ruled earlier this year that application of a floor finishing product was “the functional equivalent of painting.”3

But what of the question broached earlier? Does “painting” mean painting that occurs in the context of a construction or demolition project? Or does “painting” of itself suffice? Does “cleaning” mean any old cleaning or just cleaning that occurs in the course of a construction or demolition project?

Well, it has long been the rule that Labor Law §240(1) applies to “repairing,” “altering,” “painting,” and other listed activities irrespective of whether the covered activity occurs in the context of some larger construction or demolition project.4 Such activities as “repairing” a malfunctioning commercial freezer,5 adding a new television cable line (“altering”),6 and applying bomb blast film to strengthen some lobby windows (also “altering”),7 are covered activities even if there is no larger project in sight.

“Cleaning,” by contrast, is something of a special case. As with the other activities listed in Labor Law §240(1), the “cleaning” does not necessarily have to be part of a construction or demolition project to come within the statute’s scope. Yet, not every kind of “cleaning” is covered work.

The law as to “cleaning” has tread the same path for more than 50 years. Back in the 1950s, the Court of Appeals ruled that the statutory term “cleaning” was not so broad that it encompassed “a domestic engaged in cleaning the windows of his dwelling.”8 On the other hand, when the project entailed washing all of the windows at Rockefeller Center rather than washing a few windows in a private dwelling, the “cleaning” did fall within the scope of Labor Law §240(1).9

This brings us to the Court of Appeals’ recent decision in Dahar v. Holland Ladder & Mfg.10

In Dahar, the plaintiff worked at a factory that manufactured wall modules. Before a finished module was shipped to a customer, it had to be cleaned. Because each module was seven feet tall, plaintiff used a ladder to clean the module in issue. The ladder broke and plaintiff fell.

Clearly, the plaintiff was cleaning. But was he “cleaning” for purposes of Labor Law §240(1)? A unanimous Court of Appeals acknowledged that it had previously held that “cleaning” was “not limited to cleaning that was ‘part of a construction, demolition, or repair project.’”11 But the court had never gone “as far as plaintiff here asks us to go—to extend the statute to reach a factory employee engaged in cleaning a manufactured product.”12

Without delineating precisely where the line will be drawn (no doubt, an issue that will continue to be litigated in other cases), the court, per decision by Judge Robert Smith, held that the statutory definition of cleaning would not stretch as far as the plaintiff had here hoped inasmuch as the statute would then “encompass virtually every ‘cleaning’ of any ‘structure’ in the broadest sense of that term.”13

The “bottom line”: Labor Law §240(1) is not limited to covered activities (“altering,” “painting,” “cleaning,” etc.) that occur within the course of a construction or demolition project, but the statute also does not extend to each and every occasion in which such work occurs and, in particular, does not apply to any and all “cleaning.”

I should add that while another columnist viewed Dahar as indicative of some kind of trend, I do not see it as “new law.” It has been clear at least from the 1950s that the statutory term “cleaning” did not include any and all kinds of cleaning. Dahar was decided the only way it could have been decided in light of that precedent.

Labor Law §241(6)

Labor Law §241(6) does not of itself describe the activities to which it applies and thus differs from Labor Law §240(1) in that respect. However, the term “construction work” is defined in the state regulations enacted under authority of Labor Law §241(7). The regulatory definition of “construction work” is not far removed from the list of covered activities contained within Labor Law §240(1). It includes “[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure….”

Given that the two statutes are frequently characterized as “sister” statutes, and given that the regulatory definition of “construction work” is very similar to the list of activities contained within Labor Law §240(1), one might think that Labor Law §241(6) would apply to the same classes of activities. But one would be wrong.

The Court of Appeals ruled a decade ago that Labor Law §241(6) for the most part applies only to work that occurs within the scope of a construction, demolition, or excavation project.14 Such remains so today.15 Why? The best answer I can give is that such is the rule because the Court of Appeals clearly said so in 2002. Further, while that may have seemed a dramatic change back in 2002,16 it is now well settled that Labor Law §241(6) generally applies only to work that occurs within a construction, demolition or excavation context.17

It is thus quite possible for a given project to be “construction work” within the ambit of Labor Law §240(1) but not within the scope of Labor Law §241(6), and this in fact occurs.18

Yet, the careful reader has likely noticed that I’ve thus far said that Labor Law §241(6) “for the most part” or “generally” applies solely to work that occurs within a construction, demolition or excavation project, thus connoting that there are exceptions to the rule. Well, there are exceptions and they vary from activity to activity.

Let’s start with “repairing.” “Repairing” can occur within the scope of a construction/demolition project, but it is not something one normally associates with erection, demolition or excavation. Does the Nagel limitation to construction/demolition projects mean that “repairing” is covered work only when the workers are repairing a part of the building that they are erecting or demolishing? If so, that would be a pretty small subset.

There is a second way that “repairing” or “altering” can come within the ambit of Labor Law §241(6), but the rule is usually cited as a prelude to dismissal. There is a line of precedent to the effect that the activity qualifies if it “affected the structural integrity of the building or structure.”19

But what then of “painting”? By its nature, painting would seemingly never affect the “structural integrity” of a building. Yet, really without explanation, “painting” routinely qualifies as §241(6) work even when it is not ancillary to the erection of a building.20 The best I can surmise—and this is my explanation rather than one with judicial imprimatur—is that painting is an intrinsically hazardous activity that does not occur as routinely as “cleaning” and does not present the same line-drawing issues as arise with “altering” and “repairing.”

So, the scope of Labor Law §241(6) is narrower than that of Labor Law §240(1), but not quite as narrow as it may appear at first blush.

Conclusion

Back when the 20th century was still young, some scientists who were interested in the probability theory devised a hypothetical that ultimately became known as the infinite monkey theorem. It went like this.

Suppose you take 10 monkeys with infinite life spans and give them 10 typewriters that also have infinite lift spans. Further suppose that you can then convince the monkeys to type and keep on typing, literally forever. There would then be 100 percent probability that the monkeys would eventually type the complete works of William Shakespeare. (Actually, they would type the complete canon an infinite number of times.)

But would they, could they, produce anything as inherently improbable as §§240(1) and 241(6) of the Labor Law?

If anyone gets around to testing that, please drop me an e-mail about it.

Brian J. Shoot is a partner at Sullivan Papain Block McGrath & Cannavo and a member of the Office of Court Administration’s Advisory Committee on Civil Practice.

Endnotes:

1. Nostrom v. A.W. Chesteron Co., 15 N.Y.3d 502 (2010).

2. Schroeder v. Kalenak Painting & Paperhanging, 7 N.Y.3d 797 (2006).

3. Pittman v. S.P. Lenox Realty, 91 A.D.3d 738 (2d Dept. 2012).

4. Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813 (1987) (repairing); Joblon v. Solow, 91 N.Y.2d 457 (1998) (altering); Panek v. County of Albany, 99 N.Y.2d 452 (2003) (altering); Rivers v. Sauter, 26 N.Y.2d 260 (1970) (painting).

5. Ozimek v. Holiday Valley, 83 A.D.3d 1414 (4th Dept. 2011).

6. Randall v. Time Warner Cable, 81 A.D.3d 1149 (3d Dept. 2011).

7. Belding v. Verizon New York, 14 N.Y.3d 751 (2010).

8. Connors v. Boorstein, 4 N.Y.2d 172, 175 (1958).

9. Broggy v. Rockefeller Group, 8 N.Y.3d 675 (2007).

10. 18 N.Y.3d 521 (2012).

11. Dahar, 18 N.Y.3d at 525, quoting Broggy.

12. Id.

13. Id. at 526.

14. Nagel v. D&R Realty, 99 N.Y.2d 98, 102 (2002).

15. See, e.g., Lavigne v. Glens Falls Cement Co., 92 A.D.3d 1182 (3d Dept. 2012); Toro v. Plaza Const., 82 A.D.3d 505, 505 (1st Dept. 2011), lv. den., 18 N.Y.3d 801 (2011).

16. Joblon v. Solow, 91 N.Y.2d 457, 466 (1998).

17. Rajkumar v. Budd Contracting, 77 A.D.3d 595, 595 (1st Dept. 2010); Hurtado v. Interstate Materials, 56 A.D.3d 722, 722 (2d Dept. 2008).

18. Montalvo v. New York and Presbyterian Hospital, 82 A.D.3d 580, 580-581 (1st Dept. 2011); Mata v. Park Here Garage, 71 A.D.3d 423 (1st Dept. 2010); Caban v. Maria Estela Houses I Associates, 63 A.D.3d 639 (1st Dept. 2009).

19. Lavigne v. Glen Falls Cement Co., 92 A.D.3d 1182, 1183 (3d Dept. 2012); Crossett v. Wing Farm, 79 A.D.3d 1334, 1337 (3d Dept. 2010); Rhodes-Evans v. 111 Chelsea, 44 A.D.3d 430, 434 (1st Dept. 2007); Walton v. Devi Corp., 215 A.D.2d 60, 63 (3d Dept. 1995), lv. den., 87 N.Y.2d 809 (1996).

20. Pittman v. S.P. Lenox Realty, 91 A.D.3d 738, 739 (2d Dept. 2012) (refinishing floors, which qualified as “painting”); Aarons v. 401 Hotel, 12 A.D.3d 293, 294 (1st Dept. 2004).

Brian J. Shoot is a partner at Sullivan Papain Block McGrath & Cannavo and a member of the Office of Court Administration’s Advisory Committee on Civil Practice.

Construction Accident Litigation