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You’re a Defendant in a Labor Law Case, But Should You Be?

By Eric D. Andrew, Esq.
 

The purpose of the New York Labor Law is to ensure a safe work place by imposing liability on owners and contractors for the failure of an employer to provide a safe place to work.  No matter which of the three main sections—§ 240(1), § 241(6), or § 200—was allegedly violated, there are four criteria that will determine the applicability of the Labor Law to the case: whether the party is a statutory defendant, whether the project is covered by a Labor Law statute, whether the injured party is covered by the statute and whether the accident is an event covered by the statute.[1] All four criteria must be met in order for the Labor Law to apply.

When faced with a Summons and Complaint in a Labor Law claim, the tendency may be to immediately focus on the incident itself or the extent of the alleged injuries.  However, analyzing whether a party is a proper Labor Law defendant may be the threshold issue that can determine the outcome of the case or hasten a favorable resolution. 

 

Statutory Defendants under Labor Law § 240(1) and § 241(6)

Section 240(1) of the Labor Law, the so-called “Scaffold Law,” begins with the language defining who can be a defendant: “[a]ll contractors and owners and their agents…”  Section 241(6) contains similar language, “owners and contractors and their agents for such work…”[2]  This plain language requires further examination to clarify the universe of parties that comprise each class of potential defendants.

Owners:

While the term owner clearly would encompass title owners of the property,[3] others with an interest in the property such as leaseholders also have been found to be liable in the same manner as titleholders when they have contracted for or otherwise have the right to control the work.[4]  However, a lessee may be liable only if the lessee has the right or authority to control the work site, even if the lessee did not hire the general contractor.  Likewise, a party who contracts to have work done for their benefit, though not an owner or lessee, such as an owner of an easement, is also a potential defendant.[5]  Depending on the work being done, the easement owner could supplant the title owner from any liability.[6]

Significantly, sections 240(1) and 241(6) explicitly exclude from liability “owners of one and two-family dwellings who contract for but do not direct or control the work”.[7]  Clearly, if an owner is participating in the direction of how the job is to be done, they will lose this protection.  This participation can be as minimal as directing how and where to dispose of rubbish or observing the work and making recommendations on its performance.[8]  However, “a homeowner does not deprive himself or herself of the statutory exemption merely by presenting ideas and suggestions, observing or inspecting the work being performed and/or registering complaints in regard thereto”. [9]

The exemption also only applies to owners of dwellings.  The size of the property or structure is not considered; it is the use that determines the applicability of the exemption.  Multi-family dwellings or non-home structures will not afford an owner protection from liability under the statute.  Even if the structure qualifies as a one- or two-family home, the courts look to the nature of the use of the property.  If the property is being used by the owner solely for commercial purposes, the owner will not be afforded the protection of the exemption under either statute.[10]  In cases where the owner is renovating the property to use as a rental property or for resale, the courts also will not allow the owner to utilize the exemption.[11]

Contractors:

The courts have defined “contractor” as a party with authority to enforce safety standards and choose responsible subcontractors.[12]  For the purposes of these sections, the authority to enforce safety standards is the defining criteria, not whether the party in question actually engaged in enforcement.  Many times, day to day enforcement will be conducted by a subcontractor, but a contractor will contractually retain the authority to enforce safety standards.  Consequently, the absolute liability imposed upon owners and general contractors pursuant to Labor Law § 240 (1) and § 241 (6) does not apply to prime contractors who do not have authority to supervise or control the work being performed at the time of the injury.

Agents:

The last group of potential defendants is comprised of the agents of either owners or contractors.[13]  As the term agent implies, these parties are imparted with authority from the contractor or owner to supervise and control the job.[14]  One such example would be a construction manager with authority to direct and control the work beyond the authority to manage the schedule of work.  Where the construction manager is the one who coordinates and/or supervises the project for an owner; assumes the on-the-job responsibilities of the owner including providing design consultation, monitoring costs, scheduling the phases of the program, reviewing contract documents, recommending and implementing a safety program, maintaining coordination between the owner, architect, various sub-contractors and his firm; and regularly observes the work being performed, such a manager is clearly the agent of the owner and subject to liability.  This is especially true where the construction manager is identified in the contract as the owner’s representative and is therefore the owner’s statutory agent.[15]

The Court of Appeals also held that a third party can be liable under Labor Law § 240(1) when the activity surrounding the injury was delegated to the third party and that party had the authority to supervise and control the work.[16]  Therefore, subcontractors who control the work that caused the plaintiff's injury are also “agents” subject to liability as defendants under the Labor Law.

 

Statutory Defendants Under Labor Law § 200:

While section 200 of the Labor Law does not define the class of defendants to which it applies, the courts have applied it to owners and contractors who have the power to direct and control the plaintiff’s work.[17]  This analysis is similar to the subcontractor analysis of sections 240(1) and 241(6), and in many cases excludes owners.  Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200[18]  Additionally, “general supervisory authority at a work site, the right to stop a contractor's work if a safety violation is observed, or the authority to ensure compliance with safety regulations or the terms of a contract is insufficient to impose liability under Labor Law § 200”.[19]

When the plaintiff’s theory of liability lies not with the “means and methods” of the work but in the condition of the workplace, the owner must have created or have actual or constructive notice of a dangerous or defective condition in order to be subject to liability.[20]

Careful analysis of the applicability of the Labor Law to a defendant in the first instance is an important avenue to avoid liability.  Framing the arguments around the definitions of statutory defendants may help parties defeat liability despite the precise facts of the accident or the degree and extent of the plaintiff’s injuries.

 

If you find yourself in a situation discussed above and think you shouldn’t be, call us.  We love situations and helping you navigate your way through them.


[1] Blake v Neighborhood Hous. Services of New York City, Inc., 1 NY3d 280, 287 [2003]

[2] New York Labor Law § 240(1).

[3] Nephew v. Barcomb, 260 A.D.2d 821 [3d Dept 1999]

[4] Walp v. ACTS Testing Labs Inc., 28 A.D.3d 1104 [4th Dept 2006]

[5] Scaparo v. Village of Ilion, 13 N.Y.3d 864 (2009) and Fisher v. Coghlan, 8 A.D.3d 974 [4th Dept 2004]. 

[6] Fisher v. Coghlan, 8 A.D.3d 974 [4th Dept 2004] 

[7] New York Labor Law § 240(1).

[8] Byrd v. Roneker, 90 A.D.3d 1648 [4th Dept 2011]. 

[9] Jenkins v Jones, 255 AD2d 805, 806 [3d Dept 1998]

[10] Landon v. Austin, 88 A.D.3d 1127 [3rd Dept 2011].

[11] Id.

[12] Mergenhagen v. Dish Network Service L.L.C., 64 A.D.3d 1170 [4th Dept 2009] (status is dependent on their right to exercise control, not whether they in fact did so). 

[13] Weber v. Baccarat, Inc., 70 A.D.3d 487 [1st Dept 2010].

[14] Zervos v. City of New York, 8 A.D.3d 477 [2d Dept 2004].

[15] Rodriquez v. JMB Architecture, LLC, 82 A.D.3d 949 (2d Dep’t 2011); Lodato v. Greyhawk North America, LLC, 39 A.D.3d 491 [2d Dept 2007).

[16] Russin v. Picciano & Son, 54 N.Y.2d 311 (1982).

[17] Mergenhagen v. Dish Network Service L.L.C., 64 A.D.3d 1170 [4th Dept 2009].

[18]  Natale v City of New York, 33 AD3d 772, 773 [2d Dept 2006]

[19] Messina v City of New York, 147 AD3d 748, 749 [2d Dept 2017]

[20] Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]


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