This month we consider several unrelated Labor Law issues. “Repairing” is one of those activities—along with “altering,” “painting,” “cleaning,” “pointing,” “erection” and “demolition”—that is expressly covered by Labor Law §240, the so-called scaffold statute. The regulatory definition of “construction,”1 which must be considered in determining whether a particular project is “construction” for the purposes of Labor Law §241[6],2 also includes “repair” work, albeit with a gloss of judicial overlay.3 Yet, “routine maintenance” does not fall within the scope of either statute,4 unless, that is, the “routine maintenance” is related to and occurs within the context of a larger “construction” project.5
So how does one distinguish a “repair” from “routine maintenance”? At the polar extremes, no test is necessary because, to borrow from Justice Potter Stewart, you know it when you see it.6 At one end of the continuum, changing a light bulb is “routine maintenance,” not a “repair,” even if it happens to be a very big light bulb that will be inserted into a very tall Shell Oil sign.7 At the other end of the spectrum, when the work on the subject vessel included removal and replacement of the bulwark, engine overhaul, painting, and installation of new fendering and new deck winches, such was not routine maintenance.8
