A CASE TRIED IN THE SUPREME COURT, Appellate Division, in New York involved a plaintiff who brought an action to recover damages for personal injuries when he was allegedly injured when he fell 10 to 12 feet to the ground from a ladder while servicing a malfunctioning alarm system component on a building.

To prevail on a cause of action under Labor Law Sec. 240(1) a plaintiff must establish, among other things, that he or she was injured during the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” In determining whether a particular activity constitutes repairing, courts are careful to distinguish between repairs and routine maintenance.

Here the defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law Sec. 240(1) cause of action, as the record demonstrated that when the plaintiff was injured, he was engaged in work that constituted routine maintenance. The plaintiff testified that as a field technician for an alarm systems company, he had responded to the defendants’ premises, where he was given a worksheet that stated he was to “replace two bad magnetic switches and adjust four magnets.” While completing this assigned work atop a ladder, he fell and was allegedly injured. The defendants testified that the plaintiff’s company had been called by the defendants to service their alarm system due to a fault code. According to the defendants, the alarm company had been retained by the defendants in order to “service and maintain the alarm system and the central station communication between the security system and the fire alarms.”

In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contentions, the distinction between routine maintenance and repairing does not turn solely on whether the work involves fixing something that is not functioning properly. Likewise, the plaintiff’s deposition testimony that he had to unscrew hard wired contacts and strip the wires with a screw driver and a pair of dikes, did not raise a triable issue of fact, as this was not established to be an action outside the umbrella of regular maintenance for the defendants’ alarm system, for which the plaintiff’s company had been contractually retained.

The court determined that the labor law is a codification of the common-law duty of an owner or general contractor to provide works with a safe place to work. Where a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation. Mere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under the labor law.

Here the defendants established, prima facie, that they did not exercise supervision or control over the performance of the work giving rise to the accident. The court agreed with the Supreme Court’s determination awarding the defendants’ summary judgment dismissing the causes of action.





Q: Because of the COVID-19 pandemic, my alarm company was forced to lay off a number of employees. As I bring these employees back, do I have to bring them back based on seniority or can I impose a condition of skill?


A: Generally, I believe you can impose a condition of skill for the particular position. You may want to check your state law, however, because there may be restrictions particularly in the hospitality industry or if you are a union shop. Generally speaking, however, in the security industry, you can bring the employees back based on skill requirements for the particular job.