The Erosion of the “Integral and Necessary” Standard Under the Labor Law
Kevin G. Faley and Andrea M. Alonso
*Originally published in the
Spring 2005

                In another example of a growing trend, the Court of Appeals in Martinez v. City of New York,1 continues to narrow the application of the New York Labor Law. Prior to the decision in Martinez, New York courts had held owners or general contractors liable when a construction worker was injured while performing almost any activity that was deemed to be an “integral and necessary” part of the construction project. With the holding in Martinez, the high court has now greatly restricted the definition of “integral and necessary” with the resultant effect of further strictly construing Labor Law claims.

                In the pre-Martinez case of Mosher v. St. Joseph’s Villa,2 218 AD 2d 197, 637 NYS 2d 991 (3rd Dept, 1996) the plaintiff was injured when he fell from a ladder while cutting down a tree and subsequently brought a Labor Law claim. The removal of the tree was part of a larger project to clear defendant’s land in preparation for the future construction of a parking lot and residential building. While plaintiff was not engaged in any of the activities enumerated in the statute, the Fourth Department nevertheless modified the lower court decision and granted summary judgment to plaintiff reasoning that it was sufficient that the work being performed was “necessary and incidental to or an integral part of the erection, etc., of the building or structure.”4 The plaintiff’s removal of the tree constituted site preparation which was “incidental and necessary” to the erection of the building.

                Similarly, in Covey v. Iroquois Gas Transmission System,5 the Appellate Division affirmed an order of partial summary judgment in favor of plaintiff. Plaintiff was injured while repairing a backhoe that was used to dig pipeline ditches. The backhoe stood adjacent to a fifteen foot ditch and plaintiff had to climb the machine in order to refill the hydraulic fluid tank. As he pulled himself up, a support railing on the machine broke causing him to fall in the ditch and suffer injury. The court held that this work performed by plaintiff was an integral and necessary part of the larger project because it was required to keep the vital machinery running.6 The court rejected the defendants’ argument that the plaintiff was merely engaged in ordinary maintenance lubrication of heavy equipment which is not an activity enumerated in the statute.

                A shift in this legal landscape occurred in Martinez when the Court patently rejected the integral and necessary test and its concomitant expansion of the reach of the Labor Law.

                Plaintiff, an environmental inspector, was injured when he fell from a desk upon which he stood to inspect a pipe in the ceiling. The plaintiff was engaged in Phase One of a Two Phase project involving asbestos detection and removal. Phase Two involved the actual cleaning and removal work while Phase One entailed the inspection and identification of asbestos problem areas.

                The plaintiff was merely inspecting for the presence of asbestos before any removal work or actual construction commenced. Plaintiff’s work was to terminate before any actual commencement of the asbestos removal work. None of the enumerated activities in section 240(1) was underway. The court concluded that:

while the reach of Section 240(1) is not limited to work performed on actual construction sites…the task in which an injured employee engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.7

                The court then dismissed the “analysis employed” by the lower court which focused on whether plaintiff’s work was an “integral and necessary part” of a larger project. Such an analysis, the court held, “improperly enlarges the reach of the statute beyond its clear terms.”8

                Accordingly, since Martinez, a plaintiff can no longer establish liability under section 240 for activities deemed to be merely integral and necessary to the performance of the enumerated activities; the work must actually be covered by the statute.

                Subsequent to Martinez, in Ciesielski v. Buffalo Industrial Park, Inc.,9 The Fourth Department granted defendant’s motion for partial summary judgment dismissing the Section 240(1) claim against it. Plaintiff was injured when he fell from a ladder as he was taking measurements for the proposed installation of a racking system in a warehouse. The system was subsequently installed several months later by another company. Because plaintiff was injured before any actual construction began and because plaintiff was not injured during “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” the court concluded without hesitation that Section 240(1) did not apply. Plaintiff’s argument that the activity in question was an “essential part of the construction process” was also rejected by the court echoing the language of the Martinez court: (“That analysis improperly enlarges the reach of the statute beyond its clear terms in as much as the work was performed as part of the merely proposed installation of the racking system at a time when ‘none of the activities enumerated in the statute was underway.’”).10

                In McMahon v. H.S.M. Packaging Corporation,11 the plaintiff, president of a plumbing subcontractor, had been installing pipes in the basement level of a building when he left to inspect a site from the roof of an adjacent building as the future, potential location for a condenser unit. The plaintiff fell from a height and was injured. The court likened plaintiff’s claim to that brought in Martinez, noting that plaintiff was “merely planning for future construction work, before defendants had the incentive to install safety devices.”12 The Fourth Department also noted that the Court of Appeals “has explicitly rejected analysis that ‘focuse[s] on whether plaintiff’s work was an “integral and necessary part” of a larger project.’”13

                In Adair v. Bestek Lighting and Staging Corp.,14 the First Department affirmed the denial of plaintiff’s motion for partial summary judgment. Plaintiff, a stagehand, ascended a man-lift in order to position overhead lights in preparation of a performance. The court considered the lights to be already fully installed when plaintiff began to adjust them. She was then injured when the lift fell over. Referring to Martinez, the Appellate Division refused to acknowledge plaintiff’s necessary and integral argument because it considered the construction, that it, the installation of the lights, to have been already completed at the time of injury. Also, plaintiff failed to show in any other way that the activity fell within Section 240(1).

                While the Martinez decision stands, the integral and necessary reasoning has resurfaced in the treatment of supervisors injured on construction sites. In Campisi v. Epos Contracting Corporation,15 the Appellate Division reasoned that Martinez did not address or apply to the activity of supervising, that is, the ongoing inspection of construction work as it is in progress.

                Plaintiff was a superintendent of construction hired by the City of New York. As he returned to the renovation site after lunch, plaintiff did not hear any of the typical noises produced from construction which indicated that no work was being performed inside the building. As he walked in through the entrance to investigate, plaintiff fell through a gap in the floor and suffered an injury. The Appellate Division reversed the lower court’s decision to grant summary judgment to defendant. It held that while plaintiff’s contribution to the project was not through the use of any construction tools, he was “as much employed ‘in the [construction]’ within the meaning of the statute as any of the employees whose work he inspected.”16 Therefore, an inspector or supervisor who is injured during construction may be protected under the integral and necessary test, while a worker who is injured before or after the construction period is not.

                In another case involving an inspector, Prats v. Port Authority of New York and New Jersey,17 the Court of Appeals accepted and answered in the affirmative the certified question of whether inspections of construction work fell within purview of section 240(1). Plaintiff was an assistant mechanic working under contract to repair and rehabilitate air handling units in the World Trade Center. On the day of the incident, he and a coworker were assigned to prepare air units for inspection. Plaintiff was positioned at the base of a ladder holding it in place while the other worker ascended. Shortly after, plaintiff also began to ascend the ladder in order to bring a wrench to his co-worker. When he climbed to a point about fifteen feet above ground, the ladder slid out from under him, he fell and was injured. In concluding that plaintiff’s activity was protected, the court indicated a “confluence of factors” that may bring a worker’s activity within the statute. These include whether the nature of a worker’s position requires him to routinely perform an enumerated activity; whether his employer is under contract to complete an enumerated activity; and whether he was participating in an enumerated activity during and on the site of the specific project.

                In the instant decision, that plaintiff was injured “during” construction was not dispositive. Eventually, other factors, including his position as a mechanic and the purpose of his employer’s contract, afforded him the protection of the statute.

                The “integral and necessary” test once worked to potentially expand the duty owed by owners and contractors to their workers beyond the enumerated activities in Labor Law Section 240(1). This test may still be used by workers injured during inspection services, however, the Court of Appeals has clearly ruled that the “integral and necessary” test will no longer be applied to enlarge the grasp of the Labor Law and it seems clear that the Court’s mission to contract the Labor Law will continue.


1. 93 N.Y.2d 322, 712 N.E.2d 689, 690 N.Y.S.2d 524

2. 184 A.D.2d 197, 637 N.Y.S.2d 991 (3rd Dept. 1996)

3. N.Y. LAB. LAW 240(1) (McKinney 2002)

4. Id at 1002

5. 218 A.D.2d 197, 637 N.Y.S.2d 991 (3rd Dept. 1996)

6. Id at 198-199

7. 93 N.Y.2d at 322

8. Id.

9. 299 A.D.2d 817,7510 N.Y. N.Y.S.2d 246 (4th Dept. 2002)

10. Id at 818

11. 302 A.D.2d 1012, 755 N.Y.S.2d 186 (4th Dept. 2003)

12. Id at 1013

13. Id

14. 298 A.D.2d 159, 748 N.Y.S.2d 362 (1st Dept. 2002)

15. 299 A.D.2d 4, 747 N.Y.S.2d 218 (1st Dept 2002)

16. Id at 7

17. 100 N.Y.2d 878, 800 N.E.2d 351, 768 N.Y.S.2d 178