Wednesday, May 30, 2012

Routine Cleaning Is Not A Labor Law Protected Activity

Recently, the First Department acknowledged a significant shift in the Labor Law involving a determination as to precisely what persons are covered under the statute when the work involves the cleaning of a structure. In Soto v. J. Crew Inc., the First Department affirmed the dismissal of an action under Labor Law § 240(1), holding that an employee of a general daily maintenance services provider (read: commercial janitor) was engaged in routine maintenance, which does not constitute a Labor Law protected activity, when he fell from a ladder while dusting a shelf. Relying on the Court of Appeal’s recent decision in Dahar v. Holland Ladder & Mfg. Co. (18 N.Y.3d 521 [2012]) (see our blog entry of February 21, 2012), the Appellate Division also stated that “cleaning” should not be as broadly interpreted as plaintiff had argued.

Justice Catterson issued a concurrence in which he stated that he was “constrained” to dismiss the action under Dahar, but opined that the Dahar decision cannot be reconciled with and appears to be “a significant sea change in section 240(1) jurisprudence that overrules [implicitly] the analysis of Broggy v. Rockefeller Group, Inc. (8 N.Y.3d 675 [2007]).” Justice Catterson further argued that the Dahar Court departed from the “dispositive” inquiry under Runner v. New York Stock Exchange, Inc. (13 N.Y.3d 599 [2009]), i.e. whether the activity at issue was covered under the statute and whether the harm caused to the plaintiff flowed directly from the application of the force of gravity. In closing, Justice Catterson argued that Dahar had instead changed the focus of the analysis to one “based solely on the locus of the activity and the nature of the object being cleaned.”

DISCLOSURE: Anthony DeStefano, Esq., a partner at Mauro Lilling Naparty LLP and regular contributor to this blog, represented the Defendant-Respondent in the above matter.

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