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 particular room were not working. Upon inspection, the plaintiff found that the smoke detector was malfunctioning and needed to be replaced. He climbed up an eight-foot A-frame ladder to begin installing a single hard-wired electrical carbon monoxide/smoke detector when the ladder suddenly shifted, causing him to fall to the ground.
The trial court (Bronx County, Hon. Lucino Suarez) initially held that the work the plaintiff was performing was not a "repair" within the meaning of § 240(1), but rather "the mere replacement of a smoke detector in a non-construction and non-renovation context[.]" Rodriguez v. Milton Boron, LLC, Index No. 36182/2017E (Bx. Cty. Sup. Ct., Nov. 17, 2020). The trial court cited 2 cases on point from the Second Department, including Wein v. Amato Props., LLC, 30 A.D.3d 506 (2d Dep't 2006), and Jani v. City of N.Y., 284 A.D.2d 304 (2d Dep't 2001).
Indeed, in Wein, the injured plaintiff, an oil burner repairman, fell off a ladder that collapsed while he was replacing a boiler safety valve. The Second Department modified the trial court's Order and granted the defendants' motion for summary judgment on § 240(1), finding that the plaintiff was engaged in routine maintenance rather than a "repair" under § 240(1). Id. at 506. In Jani, the plaintiff was injured when he fell from a ladder while attempting to replace an electrical contractor located in an air-handling unit. Id. At 304. The Second Department affirmed the trial court's grant of summary judgment to defendants, holding that the plaintiff was engaged in routine maintenance at the time of accident, as he was replacing a worn-out component part "in a non-construction, non-renovation context." Id.
In Rodriguez, however, the First Department issued a very brief order on November 18, 2021, reversing Hon. Suarez's ruling and holding that the replacement of a faulty smoke/carbon monoxide detector was a "repair" within the scope of § 240(1), and not merely routine maintenance. Id. at 434. As support, the Court cited a 2014 case, Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524 (1st Dep't 2014), which articulated the standard for determining whether a plaintiff's work was "routine maintenance":
'Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering.' In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as 'whether the work in question was occasioned by an isolated event as opposed to a recurring condition[,]' whether the object being replaced was 'a worn-out component' in something that was otherwise 'operable'; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement.
Id. at 526-27 (quoting Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882 (2003); Dos Santos v. Consolidated Edison of N.Y., 104 A.D.3d 606, 607 (1st Dep't 2013); Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697 (2d Dep't 2012)) (internal citations omitted).
The Rodriguez Court also cited a 1999 case, Piccione v. 1165 Park Ave., Inc., 258 A.D.2d 357 (1st Dep't 1999), wherein the plaintiff was found to have been performing "repair" work under § 240(1) while fixing a fluorescent light fixture. Id. at 358. The Court found that "[t]he repair work consisted of replacing the ballast and sockets, disconnecting the wires, stripping them and reconnecting them[,] . . . which entailed much more than merely changing a lightbulb, [this] constituted 'repair[s]' within the meaning of Labor Law § 240(1)." Id.
Against this backdrop, the First Department arguably strayed from precedent in deciding the replacement of a faulty smoke/carbon monoxide detector falls within § 240(1)'s scope. The Rodriguez Court did not explain why the plaintiff's work was not merely "replacing components that require replacement in the course of normal wear and tear," under Court of Appeals precedent. Esposito v. N.Y. City Indus. Dev. Agency, 1 N.Y.3d 526 (2003).
In considering the "routine maintenance issue" in 2021, the Second Department found a question of fact for the jury. Cantalupo v. Arco Plumbing & Heating, 194 A.D.3d 686 (2d Dep't 2021). The plaintiff and three coworkers were performing air conditioning services at One Chase Manhattan Plaza in Manhattan. They were instructed to reinstall a division plate into the water box of an air conditioning unit. The condenser head (a round piece of steel that covers the water box), was leaning upright on the side of the unit, and was unsecured by a chain fall. While the crew was lifting the approximately 500-pound division plate, the division plate struck the condenser head, causing it to tip over and fall on the plaintiff's leg. Id. at 687. The Second Department ultimately found a question of fact as to whether the plaintiff's work was "repair" work under § 240(1), or simply routine maintenance work:
Although it is undisputed that an outside party was to perform the ultimate repair to the defective division plate, the injured plaintiff testified at his deposition that his supervisor instructed him to perform a temporary repair to the division plate in order to make the air conditioning unit function. Thus, there is a triable issue of fact as to whether the injured plaintiff's activity constituted a repair of the unit within the scope of Labor Law § 240(1).
Id. at 688 (citing Wass, 173 A.D.3d at 935).
This decision appears to present a split of authority in comparison with Rodriguez, given the fact that the plaintiff in Cantalupo was actually involved in a temporary repair of a component of an air conditioning unit in a construction context. Given the balance of precedent as discussed above, the New York Court of Appeals arguably should side with the Second Department and state that decisions such as Rodriguez should no longer be followed.
This apparent split between the First and Second Departments becomes even more stark upon consideration of Stockton v. H&E Biffer Enters. No. 2, 196 A.D.3d 709 (2d Dep't 2021). In Stockton, the plaintiff injured himself when he fell off a ladder while performing a non-emergency service call at the defendant's store. The plaintiff testified at his deposition that, "after inspecting a refrigeration unit on the roof of the store, he determined that the 'condenser fan motor was vibrating,' requiring replacement." He was injured while climbing a ladder to the roof to complete the replacement of the condenser fan motor. Id. at 710. The Second Department found that this kind of work constituted routine maintenance because it involved "replacing components that require replacement in the course of normal wear and tear." Id. at 710 (quoting Esposito, 1 N.Y.3d at 528). The appellate court affirmed the trial court's decision to grant summary judgment on § 240(1) to defendants.
Comparing the Second Department's decision in Stockton and the First Department's decision in Rodriguez makes it very clear that the Second Department is much more hesitant to award summary judgment on § 240(1) to plaintiffs when there is an issue regarding whether the plaintiff was performing "routine maintenance" rather than an activity protected by § 240(1). It is difficult to reconcile the decisions of Stockton and Rodriguez, especially in light of the existing Court of Appeals precedent.
Furthermore, as stated above, the Third and Fourth Departments have also delivered decisions involving the issue of routine maintenance vs. work enumerated under the statute, but those decisions were less surprising and more in line with what we would expect to see. See, e.g., Eherts v. Shoprite Supermarkets, Inc., 2021 N.Y. App. Div. LEXIS 6616 (3d Dep't 2021) (granting summary judgment to plaintiff on § 240(1) where plaintiff's emergency response to an isolated and unexpected event requiring him to perform a number of non-routine activities to prevent further damage resulting from a municipal water main break, constituted "repair" work under § 240(1) rather than routine maintenance); Fuhlbruck v. 3170 Del., 196 A.D.3d 1090 (4th Dep't 2021) (affirming the trial court's grant of summary judgment to defendants on § 240(1) where the plaintiff sustained injuries while cleaning the store's exterior windows because, inter alia, the cleaning was of the type that would be conducted routinely, meaning on a regular schedule and with relative frequency, in a retail setting, and the cleaning did not require any specialized equipment); Healy v. Est Downtown, LLC, 191 A.D.3d 1274 (4th Dep't 2021) (affirming the trial court's grant of summary judgment to plaintiff on § 240(1) where plaintiff was injured while removing a bird's nest from a gutter, as evidence showed that plaintiff had never before been given such a task during his time working on the premises, his supervisor characterized the task of removing the nest as nonroutine cleaning, and "[t]he totality of the circumstances established as a matter of law that plaintiff was engaged in a protected activity under Labor Law § 240 (1), i.e., cleaning, when he fell").
3. Bain v. 50 W. Dev., LLC
Bain v. 50 W. Dev., LLC, 191 A.D.3d 496 (1st Dep't 2021), is an interesting case because it leaves open the possibility for an argument that a falling object can arguably be light enough so as not to trigger § 240(1). The Bain decision is within the line of cases that follow the well-known decision in Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605 (2009).
In Bain, the plaintiff alleged he was injured when a cart stacked with plywood sheets tipped over and fell on top of him. He had been assigned to move sheets of plywood on a cart and deliver them to various apartments in a building under construction. Ten plywood sheets fit vertically on each cart. The plaintiff and a coworker were wheeling a cart down a ramp, with the plaintiff at the front of the cart, walking backwards. One wheel became lodged in a gap in the side of the ramp, the cart tipped over, and both the cart and the plywood sheets landed on the plaintiff. The plaintiff filed a motion for summary judgment for partial summary judgment on his Labor Law §§ 240(1) and 241(6) claims. With respect to § 240(1), plaintiff argued that the plywood boards were "falling objects" under the statute, and were not secured to the cart while being moved.
The defendants relied on Grygo v. 1116 Kings Highway Realty, LLC, 96 A.D.3d 1002, 1003 (2d Dep't 2012), wherein the plaintiff was injured when a cart holding sheetrock toppled and fell over, causing both the cart and sheetrock to strike plaintiff in the right leg. In dismissing the plaintiff's § 240(1) claim, the Second Department held that the plaintiff's injuries resulted from a general hazard encountered at a construction site, not the failure to provide an enumerated safety device. Id. at 1003. Thus, the cart and/or sheetrock were not considered by the Second Department to qualify as "falling objects" for purposes of the statute.
The plaintiff in Bain, however, relied on Marrero v. 2075 Holding Co., LLC, 106 A.D.3d 408 (1st Dep't 2013), in which the plaintiff was injured when, as he was walking across plywood planks, they buckled and shifted, causing an A-frame cart containing sheetrock and two 500-lb steel beams to tip onto the plaintiff's ankle. The First Department held in Marrero that, "[g]iven the beams' total weight of 1,000 pounds and the force they were able to generate during their descent," the "height differential was not de minimis." Id. at 409, referencing the core holding of Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605 (2009).
The plaintiff in Bain also relied on McCallister v. 200 Park, L.P., 92 A.D.3d 927, 927 (2d Dep't 2012), wherein the plaintiff was injured when four disassembled scaffolds, that were stacked on top of an assembled scaffold for transport, fell after the assembled scaffold's wheels broke off. The four scaffolds weighed a total of between 450 and 550 pounds, and the Second Department held that the height difference was not de minimis in light of the combined weight of the device and its load, and the force it was able to generate over its descent (id. at 928-29), pursuant to Runner.
In Bain, however, the trial court noted that there is no case law revealing "a strict cutoff weight at which a load begins to fall within the scope of Marrero and McCallister[.]" Bain v. 50 W. Dev., LLC, Index No. 160488/2016 (N.Y. Cty. Sup. Ct., Oct. 3, 2019) (emphasis added). In fact, the trial court stated that "[t]he crucial question on this motion is how much the particle boards in question weighed, and the answer to this question cannot be determined on the record before the court. Mr. McCormick [defendants' witness] could only speculate that each sheet weighed at least 10 pounds." Id. at *11. Since the trial court could "only speculate what the particle boards weighed, making it impossible to determine what kind of force they generated when striking the Plaintiff[,]" the court found a question of fact existed, precluding summary judgment on § 240(1).
On appeal, New York's Appellate Division, First Department, affirmed the trial court's denial of plaintiff's § 240(1) motion for the same reason—that triable issues of fact existed regarding the cumulative weight of the particle board sheets that fell on the plaintiff. Bain, 191 A.D.3d at 497. The First Department noted that the motion was correctly denied, as, "[o]n the issue whether an elevation differential is 'physically significant' to fall within the purview of § 240(1), a court must consider, inter alia, 'the weight of the object and the amount of force' the object is 'capable of generating, even over the course of a relatively short descent.'" Id. (quoting Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 605 (2009); Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1 (2011)).
The trial court in Bain was correct: review of current case law does not reveal a "cut-off" weight of a falling object that thrusts it into the purview of § 240(1). The trial court's decision seems to suggest that a weight of four boards weighing 10 pounds each (40 pounds total) may not actually trigger the protections of § 240(1), but there needs to be at least some certainty as to the weight of the falling object for the court to evaluate liability under § 240(1). If a court must speculate as to the cumulative weight of such a falling object, the granting of summary judgment on § 240(1) in favor of either party seems to be out of the question.
It will be interesting to see how these "falling object" cases play out in the future. At a minimum, accident investigators and defense attorneys who are able to investigate accidents soon after they happen should weigh the object(s) that fell, and measure the fall distance, in these types of falling object/tip-over cases.
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