Labor Law ' 240(1) Summary Judgment Motions In The Appellate Division In 2021

• Published date: 15 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Personal Injury, Construction & Planning
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Urvashe Sameer

New York, N.Y. (June 2022) - Despite the uncertainty amidst the COVID-19 pandemic, New York's Appellate Division still decided a number of Labor Law appeals in 2021. Of particular interest were the 118 cases in which the Appellate Division decided appeals regarding Labor Law ' 240(1), most of which were in the First and Second Departments. This article compiles statistics about those decisions, including the number of cases decided in plaintiffs' favor, in defendants' favor, and the cases in which the courts found questions of fact precluding summary judgment. We also delve into a few specific decisions that could impact ' 240(1) jurisprudence going forward.

1. Statistics

The statistics from the First Department reveal more rulings in favor of plaintiffs, in comparison with statistics from the other Departments. The First Department affirmed or reversed 43 out of the 66 appealed decisions on Labor Law ' 240(1) in favor of the plaintiff(s). Only six of the 66 decisions were in favor of the defendants. In the remaining 17 cases, the First Department found questions of fact that precluded summary judgment on ' 240(1) in favor of either side.

The Second Department was far less likely to rule in a plaintiff's favor: out of the 36 decisions, only eight were in favor of the plaintiff, whereas 15 were in the defendant's favor, and 13 holdings found questions of fact precluding summary judgment on ' 240(1).

The Third and Fourth Departments were much less active in this area of the law in 2021. There were only five and 11 appeals, respectively, on the issue of Labor Law ' 240(1). Of the five cases decided in the Third Department, four were decided in the plaintiff's favor and only one in the defendant's favor.

In the Fourth Department, of the 11 cases decided, four were decided in favor of the plaintiff, five were decided in favor of the defendant, and two were found to have questions of fact precluding summary judgment on ' 240(1). (None of the appeals in any of the four departments were denied as premature or on other grounds).

There were few surprises in most of these ' 240(1) appeals in 2021. However, there were some interesting decisions that raised significant questions about what constitutes "routine maintenance" for purposes of ' 240(1). See, e.g., Diaz v. Applied Digital Data Sys., 300 A.D.2d 533, 535 (2d Dep't 2002); see also Koch v E.C.H. Holding Corp., 248 A.D.2d 510, 511 (2d Dep't 1998). Generally, "the question of whether a particular activity constitutes a 'repair' or 'routine maintenance' must be determined on a case-by-case basis." Riccio v NHT Owners, LLC., 51 A.D.3d 897, 899 (2d Dep't 2008). In making such determinations, courts must weigh various factors, including the complexity and scope of the work. Ibid.

Additionally, in Bain v. 50 W. Dev., LLC, 191 A.D.3d 496 (1st Dep't 2021), the First Department found an issue of fact precluding summary judgment on ' 240(1) as to whether the cumulative weight of a falling object was heavy enough to impose liability on the defendants. This suggests that certain falling objects could be found to be light enough so as not to trigger ' 240(1), particularly under the analysis from the well-known decision in Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599 (2009).

2. Routine Maintenance

There were 11 cases decided across all four Departments that turned on whether the plaintiffs were performing certain work within the meaning of ' 240(1), or whether their work at the time of injury was merely "routine maintenance," and therefore not protected by the statute. The First Department considered three of these cases, the Second Department considered four, and the Third and Fourth Departments each considered two.

One of the First Department cases involving this issue, Rodriguez v. Milton Boron, LLC, 2021 N.Y. App. Div. LEXIS 6503 (1st Dep't 2021), stood out among the others because it is arguably contrary to long-standing precedent across New York. The plaintiff in Rodriguez was employed as a superintendent for a building that housed a residential homeless shelter. His duties included replacing broken floor tiles, painting rooms, and repairing plumbing leaks. He testified that he was required to perform walk-throughs at the building to check for items that were damaged and needed repair. The plaintiff testified that on the date of the accident, his supervisor conducted a walk-through of the building and told him the smoke and carbon monoxide detectors in a...