Kevin G. Faley and Andrea M. Alonso
*Originally published in the New York Law Journal
June 9, 2010

New York Labor Law 240(1) imposes liability on an owner or general contractor for failing to provide certain safety devices where the lack of those devices or a defective safety device causes a worker to be injured. To fall within the Labor Law's purview, the worker must be engaged in a "protected activity" at the time of the accident. Protected activities as enumerated in the Labor Law, include "erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure."1Tasks such as "inspection" or "routine maintenance" are generally found to be unprotected activities, and thus outside the purview of the Labor Law. However, what qualifies as "inspection" or "routine maintenance" has been the subject of much debate.

The courts have closely scrutinized a worker's task and the circumstances surrounding the accident to determine whether an activity is protected or unprotected. In ascertaining whether an activity is protected or not, the New York courts have struggled to decide whether certain "inspections," "routine maintenance," or any other typically unprotected tasks which may be incidental to a protected activity fall within this protected class.


The 2003 Court of Appeals decision in Prats v. Port Auth. of N.Y. & N.J. discussed what types of inspections may come under the protection of the Labor Law. In Prats, the Court asserted that inspections of an air conditioning vent were protected under the Labor Law because the inspections were ongoing and contemporaneous with a single contract for building construction and alteration, which are both protected activities.2 The Court also found it significant that at the moment when the injury occurred, the plaintiff was inspecting what he had previously altered as part of the construction project because alterations are covered by the Labor Law. Accordingly, as the inspections were intertwined with ongoing protected construction work, there could be no separation of the inspections from the actual construction.


The Court of Appeals used different reasoning in deciding Broggy v. Rockefeller Group, which dealt with cleaning, usually a protected activity.3 In Broggy, the plaintiff stood on an office desk in order to clean the interior part of an office window and ultimately fell backwards off of the desk and sustained injuries. The Court distinguished Mr. Laurence Broggy's task of industrial interior window washing from unprotected, "routine household" window washing because the latter rarely presents an elevation-related risk.

 In determining if the window washing was a protected activity under 240(1), the Court did not deem it essential whether an interior or exterior window was being cleaned. Further, in contrast to Prats, the Court did not think that the "crucial" consideration was whether the window washing was taking place as part of "construction, demolition or repair project, or was incidental to another activity protected under 240(1)." Rather, the Court opined that liability turns on whether a particular window washing task "creates an elevation-related risk of the kind that...240(1) protects against."

While the Court noted that interior window washing would typically be a protected activity because "cleaning" is expressly enumerated in the Labor Law, the Court found that the window washing in Broggy was not protected because the plaintiff had reached and cleaned eight other windows of the same height without having to raise himself to an elevated height.

The Broggy Court reaffirmed the fundamental principle of the Labor Law, namely, that the worker must be exposed to a gravity related danger before the activity becomes protected and that it is a combination of the type of work being performed and whether there is a height differential which determines if the Labor Law is invoked.

Progeny of 'Broggy' and 'Prats'

The First Department is somewhat at odds with Prats and more in line with Broggy. In 2007, it held, in Buckley v. Columbia Grammar and Preparatory, that conducting tests and inspections were not protected even though these activities were incidental to a protected activity.4 In Buckley, the plaintiff was testing and inspecting an elevator car platform in the course of installing a new elevator for a larger renovation project. Using the reasoning of the Court of Appeals in Broggy, the court held that the work being performed was not protected because the inspection and testing did not involve a significant, "inherent" risk attributable to an "elevation differential."

The First Department also followed Broggy's logic, but came to a different conclusion in the 2009 case Masullo v. 1199 Housing Corp., where the plaintiff's task of running a cable wire through trees was protected because a ladder was necessary to hang the cable.5

The Third Department's 2009 decision in Pakenham v. Westmere Realty appears to adopt a middle ground between Broggy and Prats.6 In Pakenham, as the plaintiff service technician was headed home towards the end of the day, he was asked to check on the building's piping system in response to a report of "no heat." After climbing a ladder to inspect the roof and heating system, the plaintiff descended the ladder to get his tools, at which time the ladder slipped from under him and caused him to fall and sustain injuries.

The court noted that "repair" implicates Labor Law 240(1) whereas "routine maintenance" does not, and asserted that delineating between these two activities is frequently "a close, fact driven issue," as it was in the present case. The court asserted that because plaintiff "responded to an emergency situation" which necessitated climbing onto a snow covered roof in the dark and after regular work hours; his activity was hardly a "routine round of maintenance."

It seems that the court in Pakenham was open to applying Labor Law 240(1) since there was a gravity related injury; however, the court's distinction between routine maintenance and repair seemed to hinge on how difficult the repair work was and what time of the day it took place. If the same accident had occurred on a sunny summer day, would the court have treated this activity the same?

Maintenance vs. Inspections

The departments appear to distinguish between inspections related to "routine maintenance" and inspections that relate to repeated and/or emergency repairs, with only the latter being protected.

For example, in the Third Department in Alexander v. Hart, the plaintiff's task of checking an air conditioner unit was considered a protected activity because he was completing a service call and not a routine check up.7 Also, the Second Department in Weisman v. Duane Reade precluded summary judgment for the plaintiff where the plaintiff fell off of a ladder after responding to a "no heat" call for a heating unit that he had worked on previously for the same type of malfunction.8

The Fourth Department deemed inspections and investigatory work to be outside of the Labor Law's protection in the 2004 case MacMahon v. H.S.M. Packaging Corp., because these activities were merely part of planning for future construction work.9 Yet in the later case, Bagshaw v. Network Service Management, an inspection of an elevated electric sign was protected because it was "necessary" to the repair work that the plaintiff had been hired to perform.10

The court opined in Bagshaw that the relevant inquiry is "not whether the plaintiff picked up a tool to effect a repair, but whether he was hired to take any part in the repair work."

Further, the First Department recently clarified in 2009 in the case Parente v. 277 Park Ave., that an inspection can be a protected activity when it is "necessary and integral" to a protected activity.11 Using this reasoning the court found that climbing on a desk to inspect a malfunctioning booster fan was a protected activity that surpassed routine repair because it was an emergency situation and plaintiff was inspecting the fan in order to ascertain the cause of the breakdown.


In 2008, the Court of Appeals in Sanatass v. Consolidated Investing Co., elaborated on what would qualify as an "alteration" in order to be protected under the Labor Law.12 The plaintiff in Sanatass was injured after he drilled holes into a wall, affixed metal rods into a ceiling, installed an air conditioning duct and attempted to install the air conditioning unit with two manual lifts.

The Court of Appeals found this activity to be within the ambit of 240(1). In referring to its earlier precedents in Joblon v. Solow13 and Panek v. County of Albany,14 the court emphasized that "altering" requires making a "significant physical change to the configuration or composition of a building or structure." However, the court made it clear that "routine activities" such as maintenance and decorative modifications do not qualify as alterations.

In the Second Department case Wade v. Atlantic Cooling Tower Services., the court held that dismantling a sprinkler system was an alteration.15 A year later, cutting barbed wire was also deemed an alteration in the 2009 case Rico-Castro v. Do & Co. N.Y. Catering.16 Using Prat's language, the Second Department opined in Rico-Castro that it is inconsistent with the "spirit" of Labor Law 240 (1) to isolate the moment of injury and ignore the general context of the work.

Applying this reasoning, the court found that the overall project of moving a 12-foot bolted fence to another location to be re-bolted, was sufficient to be an alteration. The fact that the plaintiff was merely cutting barbed wire at the time of the incident did not cause the activity to fall outside 240 (1) because it was "ancillary" to a protected activity.

In contrast, the First Department held in Rhodes-Evans v. 111 Chelsea, LLC, that splicing a fiber into pre-existing fiber optic cable in a tenant building was not an alteration under the Labor Law merely because it was incidental to a repair project.17


With regards to repairs, the Second Department appears to make fine distinctions in determining if a given activity is protected repair work under Labor Law 240(1). For example, it found in Lioce v. Theatre Row Studios that installing lights for a theater production was not protected repair work, that repairing a light fixture was protected in Eisenstein v. Board of Managers of the Oaks at La Tourette Condominium Section I-IV, but replacing a ballast in a light fixture was not protected repair work in Deoki v. Abner Prop.18

The Second Department diverted from Lioce in Juchniewicz v. Merex Food Corp., where it found that installing a tattletale relay and replacing a refrigerator system's thermometer was considered repair.19Link to the text of the note The court then appeared to wrestle back and forth in 2008 with regards to classifying repair work, finding in Riccio v. NHT Owners that replacing a door track was repair work that surpassed routine maintenance, while holding that same year in Thompson v. 1701 Corp. that replacing and tightening screws and pins were not.20


The departments have even differed amongst themselves on whether a set type of activity is covered under the Labor Law. For example, while the Second Department deemed working with wallpaper a protected activity in Kozlowski v. Grammercy House Owners Corp., the Fourth Department disagreed in Schroeder v. Kalenak Painting & Paperhanging because it was not an "integral" part of a larger repair project.21

The Standard

Currently, no court has developed a set formula to ascertain whether or not an activity is protected under the Labor Law. The consensus both from the Court of Appeals and the Appellate Divisions is that inspections are not protected if merely incidental to a protected activity.

As MacMahon pointed out in 2004, "a discernable trend is emerging...Labor Law 240(1) does not apply to investigatory or planning activities that take place prior to construction work." However, in 2009 it became clear that an inspection can be a protected activity when it is "necessary and integral" to a protected activity.

Some case law even indicates that the progress of a given activity can affect whether or not it is protected. As also stated in MacMahon, if construction is in progress, the Labor Law covers the given activity "even though the particular task does not physically involve construction"; but when a construction project is complete, the Labor Law only applies if "the task itself is sufficiently substantial so as to amount to a protected activity under the Labor Law."

Thus, it appears that an unprotected activity done during an overall project involving protected activity may be protected, depending upon how essential the activity is to the overall project.

Also, the possibility remains that an activity can be protected if the inspection or general work activity creates an inherent elevation risk. However, after a construction project has been completed, it seems clear that there must be an independent basis to classify an activity within the Labor Law's protection rather than trying to make an unprotected activity ride on the coattails of finished work.

Either way, "routine maintenance" and aesthetical improvements in response to "wear and tear" almost always fall short of the Labor Law. The courts continue to distinguish routine maintenance from protected tasks that are part of repeated repairs or are in response to emergency situations and breakdowns.

KEVIN G. FALEY and ANDREA M. ALONSO are partners at Morris Duffy Alonso & Faley. JENNA MASTRODDI, a paralegal, assisted in the preparation of this article.



  1. N.Y. Labor Law 240 (1) (1921).
  2. 768 N.Y.S.2d 178, 183 (N.Y. 2003).
  3. 839 N.Y.S.2d 714, 717 (N.Y. 2007).
  4. 841 N.Y.S.2d 249, 254 (1st Dept. 2007).
  5. 881 N.Y.S.2d 47, 50 (1st Dept. 2009).
  6. 871 N.Y.S.2d 456, 458 (3d Dept. 2009).
  7. 884 N.Y.S.2d 181, 182 (3d Dept. 2009).
  8. 883 N.Y.S.2d 137, 139 (2d Dept. 2009).
  9. 755 N.Y.S.2d 186, 189 (4th Dept. 2003).
  10. 772 N.Y.S.2d 161, 163 (4th Dept. 2004).
  11. 883 N.Y.S.2d 22, 23 (1d Dept. 2009).
  12. 858 N.Y.S.2d 67, 70 (N.Y. 2008).
  13. 91 N.Y.2d 457, 695 N.E.2d 237 (1998).
  14. 99 N.Y.2d 452, 788 N.E.2d 616 (2003).
  15. 867 N.Y.S.2d 489, 490 (2d Dept. 2008).
  16. 874 N.Y.S.2d 576, 577 (2d Dept. 2009).
  17. 843 N.Y.S.2d 237, 240 (1st Dept. 2007).
  18. , 776 N.Y.S.2d 89, 91 (2d Dept. 2004); 842 N.Y.S.2d 72, 75 (2d Dept. 2007); 852 N.Y.S.2d 261, 261 (2d Dept. 2008).
  19.  848 N.Y.S.2d 255, 257 (2d Dept. 2007).
  20. 858 N.Y.S.2d 363, 366 (2d Dept. 2008); 857 N.Y.S.2d 732, 733 (2d Dept. 2008).
  21. 848 N.Y.S.2d 338, 339 (2d Dept. 2007); 811 N.Y.S.2d 240, 242 (4th Dept. 2006).