Wednesday, April 9, 2014

Leave Granted in Labor Law 240(1) Billboard Fall Claim

The Court of Appeals just granted leave to appeal in Saint v. Syracuse Supply Co., where the plaintiff was injured in a fall on an elevated billboard (he fell from one level of the billboard to a catwalk, but not completely off of the billboard). The Fourth Department dismissed the plaintiff's Labor Law § 240(1) claim, concluding that he was in the process of applying a new advertisement to the face of a billboard, and that his work was essentially cosmetic, which would not constitute a Labor Law protected activity. The plaintiff unsuccessfully asked the Fourth Department to grant leave, but the Court of Appeals has now agreed to hear the matter.

The plaintiff argued to the Court of Appeals that his job entailed changing the “structure” of the billboard by adding metal and wood extensions to the board as part of a project to attach a new vinyl advertisement. He further argued that, in light of the fact that his work constituted an “alteration” of the billboard, the Fourth Department decision appeared to impermissibly apply a ‘per se’ exclusion of billboard changing from the Labor Law. The defendant responded that the Fourth Department correctly applied the Court of Appeals’ prior precedent in Munoz v. DJZ Realty, LLC., in which the Court of Appeals concluded that pressing a pre-glued sheet to a billboard face, even to cover a billboard that was that was 12 feet by 24 feet in size, did not constitute a Labor Law protected activity. Here, the defendant alleged that application of the billboard face included the so-called “extension,” and that there was no “alteration” of the structure itself.

The New York State Trial Lawyers Association has already obtained status as amicus on the appeal.

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