Friday, August 31, 2007

Personal Injury Attorney - "Cleaning" Injuries Under Labor Law 240(1)

In Broggy v Rockefeller Group, Inc., 2007 NYSlipOp 05775 (July 2, 2007), here, the New York Court of Appeals resolved some of the ambiguity over what type of "cleaning" is a protected activity under Labor Law 240(1), which places an affirmative duty on owners and contractors to protect workers engaged in certain high-risk occupations from gravity related hazards.
The Courts of Appeals had previously said that “the ‘cleaning’ encompassed under the statute does not include the routine, household window washing… [but does include] the cleaning of all the windows of a large, nonresidential structure such as a school,” Brown v. Christopher St. Owners Corp., 87 N.Y.2d. 938, 939 (1996), but the Departments of the Appellate Division then split over how this was to be applied: the First and Third Departments hdld that “Cleaning” refers to any commercial cleaning but not truly domestic cleaning, while the Second and Fourth Departments hold that “cleaning” refers only to professional window washing. Compare Chapman v. IBM, 253 A.D.2d. 123, 125 (3rd Dept., 1999)(cleaning interior light fixture of building a protected activity) and Fox v. Brozman-Archer Realty Servs., 266 A.D.2d. 97, 98 (1st dept., 1999) (maintenance worker protected when power-washing Plexiglas canopy at entrance of building) with Machado v. Triad III Assocs., 274 A.D.2d. 558 (2nd dept., 2000) and Noah v. IBC Acquisition Corp., 262 A.D.2d. 1037 (4th Dept 1999). See also Garcia v. Delta Air Lines, Inc., 98-CV-7259 (JG), 2001 U.S. Dist. LEXIS 621, 8-9 (E.D.N.Y, 2001) (agreeing with 1st and 3rd Departments).
In Broggy, 30 AD3d 204, 206-207 (1st Dept. 2007), the First Department attempted to narrow its previous holdings regarding "cleaning," and held that cleaning was only a protected activity if it is ancillary to construction, demolition or repair.
The Court of Appeals reversed this finding, however, and held that cleaning, as defined in Brown v. Christopher Street, is a protected activity regardless of whether it is ancillary to construction, demolition, or repair.
Although it disagreed on this point, the Court of Appeals nonetheless affirmed the decision to grant summary judgment, finding that the plaintiff in Broggy had failed to prove that his work necessarily entailed a gravity related risk. The Broggy plaintiff had been injured when he climbed on a desk to clean a window inside an office, but in opposing summary judgment the burden was on the plaintiff to prove that he had climbed on the desk due to a gravity related hazard that was necessarily incumbent upon his employment (either through the nature of the job or the direction of his employer), and the Broggy plaintiff failed to meet this burden. Had the desk not been in his way, the plaintiff could have cleaned the window while standing on the floor with his extendable squeegie, and thus the plaintiff had failed to prove that he had climbed on the desk because of the height of the window and could not rebut the defendant's argument that he had climbed on the desk merely to avoid the difficulty of either moving it or leaning over it.
You can learn more about Labor Law 240(1) here.  If you are seeking representation, feel free to contact me at

No comments:

Post a Comment