Jose Soto (“Plaintiff”), an employee of a commercial cleaning company hired to provide janitorial services for J. Crew, appealed the lower court’s grant of summary judgment on his New York Labor Law section 240(1) claim against J. Crew. While dusting a shelf with a “high duster,” Plaintiff fell from the four-foot-tall ladder on which he was standing. Due to the fall, he suffered injuries to his back, knee, and elbow.
Plaintiff instituted a personal injury action against J. Crew and the building owner (“Defendants”) under Labor Law section 240(1). Defendants moved for summary judgment, arguing that the type of work Plaintiff was performing did not fall within the type of cleaning protected under the statute and that he failed to establish his exposure to an elevation-related risk or that the ladder was defective. Plaintiff also moved for summary judgment, arguing that the statute covered all commercial cleaning, including the act he was performing. He also claimed that he was not provided with adequate protection because the ladder was not properly supported. The Supreme Court for New York County granted summary judgment for Defendants on the ground that the statute did not apply to individuals employed on a daily basis to do routine commercial cleaning. The appellate division unanimously affirmed.
Under Labor Law section 240(1), owners and contractors have an absolute liability for failing to provide safety devices necessary for workers subjected to elevation-related risks. To be covered, the plaintiff must be engaged in “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” and the injury must have been a direct consequence of the lack of proper protection. N.Y. LAB. LAW § 240(1) (McKinney 2013).
On appeal, the Court was asked to determine if Plaintiff was engaged in “cleaning” within the meaning of the statute. In its analysis, the Court determined that the purpose of the controlling law was to protect construction workers who faced elevation-related dangers on the work site. Based on past cases, including Dahar v. Holland Ladder & Mfg. Co., 18 N.Y.3d 521 (2012), the Court found that routine maintenance, such as household window washing, was excluded from the statute because such a task did not typically involve the type of heightened elevation risks that the provision aimed to protect against. Building upon Dahar, the Court reasoned that the task would not be covered under the law as “cleaning” if it was routine, required neither specialized equipment nor expertise, involved insignificant elevation risks, and was unrelated to the purpose of the law.
Based upon these factors, the Court found that the activity undertaken by Plaintiff did not fall within the scope of section 240(1). The Court considered dusting to be routine maintenance that did not require specialized equipment or knowledge and could be accomplished with tools found in a domestic setting. Likewise, the Court noted that the elevation risks involved were comparable to that a homeowner would experience, not a construction worker. Since he was not covered, the Court did not need to determine if the injury was a consequence of lack of proper protection on behalf of the employer.
2013 WL 5566304, 2013 N.Y. Slip Op. 06603