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First Department Continues Expansion of “Covered” Activities
In a recent decision, the Appellate Division, First Department modified a Supreme Court, Bronx County decision that grated the defendants’ motion for summary judgment to dismiss plaintiff’s Labor Law § 240(1) cause of action.
Procedural Posture & Facts:
In Rodriguez v. Riverside Ctr. Site 5 Owner LLC, 2025 NY Slip Op 00411, plaintiff alleges that he was injured while working as a delivery truck driver and had just completed a delivery to tiles for other employees to install when he stepped and fell into a partially covered, two-foot by three-foot hole near a temporary loading dock ramp.?
The Supreme Court, Bronx County cited to First Department precedent holding, inter alia, that delivery drivers who are not “engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” are not protected by Labor Law § 240(1).? It then granted the defendant’s motion and dismissed plaintiff’s Labor Law § 240(1) cause of action.
The First Department disagreed with the lower Court’s holding, that “the task that a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under [Labor Law? § 240(1)].”? Elaborating, the First Department held:
Rather, the inquiry includes whether the plaintiff’s employer was contracted to perform the kind of work enumerated in the statutes and whether the plaintiff was performing work “necessary and incidental to” a protected activity.? Because plaintiff’s work in delivering and unloading the tiles to be used in the activity covered by Labor Law § 240(1) was “necessary and incidental” to the protected activity, he was within the class of workers protected by those statutes, notwithstanding that he was not assigned to participate in the instillation of the tiles.
The First Department then modified the lower Court’s decision and granted plaintiff’s motion for summary judgment as to Labor Law § 240(1).
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Commentary:
Labor Law § 240(1) will be “construed as liberally as possible” to accomplish its intended purpose.? Here, the First Department acknowledges that plaintiff’s activity is adjacent to the work contemplated under the statute, but consistent with liberal interpretations across the Appellate Divisions and Court of Appeals, includes this kind of adjacent activity as covered under Labor Law § 240(1).?
Links:
The Rodriguez decision can be found here.
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