Supervisor's Fall During Pre-Repair Inspection Does Not Qualify as Scaffold Law

Saturday, September 8, 2007 | 0

By Larry Rogak

English v. City of New York

2007 NY Slip Op 06535

Decided on Sept. 4, 2007

Appellate Division, Second Department

In this wrongful death action, plaintiffs appealed from an order of the Supreme Court, Kings County (Solomon, J.) which granted summary judgment to the City of New York dismissing the Labor Law Sections 240(1) and 241(6) claims. The Appellate Division affirmed.

The decedent, a supervising engineer at Woodhull Hospital in Brooklyn, accompanied a maintenance worker on his staff to investigate a missing fan belt in the heating and cooling system. While walking along a narrow beam between two catwalks in the interstitial space, he fell 30 feet to the ambulance ramp on the floor below.

The plaintiffs commenced this action against the New York City Health and Hospitals Corporation, the decedent's employer, and the City of New York alleging violations of Labor Law Sections 240(1) and 241(6).

"The evidence presented by the defendant demonstrated that the work to be performed on the system was 'routine maintenance' involving the replacement of a missing component and did not constitute 'erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure' so as to fall within the protective ambit of Labor Law Section 240(1). Moreover, the defendant established that the decedent's investigation of the malfunctioning unit prior to commencement of the maintenance work to be performed by a worker on his staff did not fall within the enumerated protected activities of Labor Law Section 240(1)."

"Further, the defendant met its burden of establishing that the plaintiffs could not sustain a claim under Labor Law Section 241(6) since the decedent was not working in a construction area, and the accident did not occur in connection with construction, demolition, or excavation work. The decedent was not employed by a contractor performing an ongoing renovation project to upgrade the hospital's fire alarm system, and his investigation of the missing fan belt was conducted independently of that renovation work."

"As the evidence submitted by the plaintiffs failed to raise a triable issue of fact, the Supreme Court properly granted those branches of the defendant's cross motion which were for summary judgment dismissing the Labor Law Sections 240(1) and 241(6) claims insofar as asserted against it, and, accordingly, properly denied that branch of the plaintiffs' separate motion which was for summary judgment on the issue of liability on the claim to recover damages pursuant to Labor Law Section 240(1)."

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com. His new book, Rogak's New York No-Fault Law & Practice can be purchased by clicking here.

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