Judge David Larimer

Lender First Union possessed a property in mortgage foreclosure. It contracted with LPS Field Services to perform “property preservation services.” LPS contracted with A-1 Property Services, which engaged East Coast Property Services, who then hired Saxby’s company. LPS’ agreement with A-1 identified A-1 as an independent contractor. Saxby was hurt after falling while repairing the property’s chimney. A state court suit against A-1 and East Coast is pending. Saxby also sued LPS for violating New York Labor Law §§200, 240, and 241. He also claimed LPS negligently hired A-1 and failed to oversee the property preservation services. The suit was removed under diversity jurisdiction. District court dismissed Saxby’s negligent hiring claim as insufficiently stated because he was contracted by an independent contractor and thus not an injured third party. His Labor Law claims survived. Saxby plausibly alleged LPS to be an owner or contractor controlling or supervising the work performed. He also plausibly alleged LPS was a contractor, owner, or agent thereof, empowered to enforce safety standards and choose responsible subcontractors, and that LPS failed to provide sufficient protective devices and measures at the work site.