Labor Law Pointers Double Special Edition: New Court of Appeals case and our ‘Twas the Night Before Construction holiday offering



Note from David R. Adams:

Here at Hurwitz Fine, we have two reasons for sending out a Special Edition of Labor Law Pointers. First, we send out a Special Edition if there is a Court of Appeals decision we deem important enough that our readers should hear about it right away. Second, and potentially more importantly, we send our annual Holiday Edition to our readers with my twisted rendition of “Twas the Night Before Construction,” a tongue-in-cheek nod to the classic “Twas the Night Before Christmas”.
I recall writing the first edition of Labor Law Pointers in 2011. The case we prominently discussed was the just-decided Court of Appeals case of Wilinski v 334 East 92nd, which allowed § 240(1) liability for falling objects when the falling object originated from the same level as the plaintiff.  This was a departure from existing law and represented a notable expansion of the scope of § 240(1). Over the years, we have seen many expansions of § 240(1) and very few cases restricting the scope of the statute.
Today, however, we send this Special Edition of Labor Law Pointers with a note on a just-decided Court of Appeals § 240(1) case, Stonehan v Barsuk, where the Court ruled that a person injured while making a repair (a protected activity), to a motor vehicle (a Structure by definition),  while “so employed” (a valid plaintiff), is not entitled to the protection afforded workers under § 240(1); ruling that ordinary vehicle repair is not a protected activity.  This decision, like Dahar v Holland (where the Court of Appeals ruled that manufacturing was not protected activity covered by §240(1)), draws a bright line which limits the seemingly expanding scope of § 240(1).
Marc Schulz, our § 240(1) case analyst, has a summary and analysis of the case below.  It is well worth the read.
Before we get back to business, however, please enjoy our holiday tradition. I hope you enjoy reading it as much as I enjoyed writing it. 


David R. Adams
Hurwitz Fine P.C.
The Liberty Building
424 Main Street, Suite 1300
Buffalo, New York 14202
Phone:  716.849.8900
Direct:  716.849.8916
Fax:  716.855.0874
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Email:  [email protected]
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A Visit to the Construction Site
‘Twas the Night Before Construction

By David Adams

(with apologies to Clement Clark Moore)
‘Twas the night before Christmas and down at the site,
Not a tradesmen there was working, no one hanging a light;
The impalement protection hung by the shaft with great care,
Just in case an OSHA inspector decided to look over there.
The power tools were locked in the biggest gang box,
While the neighborhood kids pummeled windows with rocks;
The guard in his uniform and I in hard hat,
Had just opened a bottle from an old dusty vat;
When up on the third floor there arose such a sound,
That I flew up the ladder without touching the ground.
Away to the scaffold I ran looking spastic,
Jumped into the abatement area, and tore open the plastic.
The security light, on the beams of the just ‘rected structure,
Gave a look of great progress to this new joint venture,

When what through my tempered safety glasses did appear,
But a tipped over ladder and some broken veneer,
With a little old worker, looking injured and stiff,
I knew right away that he’d become a plaintiff.

More rapid than vultures the attorneys they came,
And they pushed and they shoved and called out his name,
“No I saw him first”, and “Who tipped that ladder”,
“Oh please just stand back, I will handle this matter!”

I filed pre-suit discovery on my way over here,
Said the one from the billboard, two phones to his ear.

As squirrels before racing trucks would flee,
When faced with an accident they giggled with glee.
So up to the scaffold the attorneys they flew,
With cards, blank retainers, and golden pens too.

And then in a twinkling I saw on the floor,
A harness, a lanyard, right there by the door.
As I stepped over closer and was looking around,
Plaintiff, he donned it, with a distinct clicking sound.
It was yellow and black with a sliding back ring,
And to keep you from falling, it was just the right thing;
So there, on the worksite, a safety device,
Appropriate and available, now isn’t that nice!
His leg how he held it, his arm it looked bad,
But the issue to my mind, what instruction he’d had.
Was he told to tie off, was he told not to climb,
Was he told to have the ladder be held every time? 

He had a pleasant face with a small little slice,
It bled as he rubbed it, which he seemed to find nice.

He was looking around, from lawyer to lawyer,
Asking each one “Can I sue my employer?”
With a wink and a nod, the attorney he said,
There are ways and I know them, you have nothing to dread.

We have us that statute, it’ll make you quite wealthy,
It will fill up your bank book and make you feel healthy.
We lawyers of course live just on a third,
Taking anything else, would be quite absurd.

He spoke not a word but started his notes,
With theories of gravity and dreams of new boats,
The ladder has shifted, of that he was sure,
It gave him 240, without a detour.

Plaintiff sprang to his feet and grabbing a pen,
He signed the retainer from the nice billboard men.
And I heard him exclaim “Hey I fell from a height”,
Happy Christmas to all and to all a good night.


Now on to the new case from the Court of Appeals

 Greetings Subscribers!

This is the first Court of Appeals Labor Law § 240(1) decision in over a year, which holds the line on the statute by not expanding its protections to cover ordinary vehicle repair work. The Court’s decision rejected plaintiff’s theory of liability – that he was engaged in a protected activity by merely repairing a structure, in a non-construction, non-renovation context – because expanding the statute’s scope, to cover a mechanic engaged in ordinary repair work, was neither envisioned by the Legislature nor supported by case law.
Stoneham v Joseph Barsuk, Inc.
December 19, 2023 
Court of Appeals 
Plaintiff was working on defendant’s flatbed commercial trailer. At the time of the incident, plaintiff utilized a front-end loader to lift the trailer and was in the process of replacing a leaking air tank on the trailer’s brake system. The trailer was hoisted about five-and-a-half feet off the ground using the loader’s bucket attachment. While working underneath the trailer, the loader rolled backwards, dropping the trailer on top of plaintiff. The trial court denied plaintiffs’ motion for summary judgment and granted defendant’s cross-motion to dismiss the Labor Law § 240(1) claim, finding that plaintiff was not engaged in a protected activity under in the meaning of the statute.

Plaintiff argued on appeal that he was engaged in a protected activity because the replacement of the air tank constituted a “repair” § 240(1), and that the trailer itself constituted a “structure” under the statute. The Fourth Department affirmed the trial court’s decision, determining that plaintiff was performing his normal occupation of repairing vehicles, and thus, was not engaged in any construction, renovation, or alteration at the time of his incident. Justices Winslow’s and Bannister’s dissent agreed with plaintiff that the trailer was a structure under § 240(1) and, therefore, would have denied defendant’s motion because he failed to eliminate all triable issues of fact as to whether plaintiff was engaged in routine maintenance – which falls outside the protections of Labor Law § 240(1) – or a repair of the trailer; a protected activity. 

Labor Law § 240(1) (MAS) 
The Court of Appeals affirmed the Fourth Department’s order and held that plaintiff’s activity, ordinary vehicle repair, is not an activity covered by Labor Law § 240(1). If the statute applied in this case, car owners would be absolutely liable for gravity-related injuries that occurred when a mechanic was working on their car. The majority thus concluded that the broad view of the statutory elements proffered by plaintiff is “too simple,” and accepting it would lead to an unintended and inappropriate expansion of § 240(1) liability.

Justice Cannataro’s dissent contends there is, at least, a question of fact as to whether the protections of Labor Law § 240(1) are available, because plaintiff suffered an injury due to a significant elevation differential, which could have been avoided by providing appropriate safety equipment. Both plaintiff and his expert witness opined that the incident would not have occurred had plaintiff been provided with proper blocks to secure the wheels of the front-end loader, and that the materials available at the worksite on the day of the incident were insufficient for that purpose.

PRACTICE POINT: Plaintiff simply was not injured by a hazard against which the statute was intended to protect. Labor Law § 240(1) does not automatically apply every time a worker is injured because of an elevation-related differential, and the statute’s protections are not extended to every activity that might fit within its literal terms. This case is important because the Court of Appeals declined to expand the statute to encompass any “repair” of any “structure”, which is so beyond the purposes it was designed to serve. As a result, ordinary vehicle repair work is not an activity covered under the statute.

Have a great holiday season and a happy and healthy New Year.


Labor Law Pointers is published the first Wednesday of each month.  If you know of others who may wish to subscribe to this free publication, please feel free to forward it.  If you wish to subscribe, please do so here or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8916.


Labor Law Pointers
David R. Adams

Associate Editor
Eric S. Bernhardt

Associate Editor
Timothy P. Welch

Associate Editor
Marc A. Schulz

Associate Editor
Eric D. Andrew

Associate Editor
Patrice C. S. Melville

Associate Editor
Ashley M. Cuneo

Labor Law Team

David R. Adams, Team Leader
[email protected]
Dan D. Kohane
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Michael F. Perley
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Eric S. Bernhardt
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Marc A. Schulz
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Ashley M. Cuneo
[email protected]

Steven E. Peiper
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Brian F. Mark
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Timothy P. Welch
[email protected]

Eric D. Andrew
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Jesse L. Siegel
[email protected]

Patrice C.S. Melville
[email protected]



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