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July 17, 2019

Third Department Narrows Liability Under Labor Law § 240(1)

In its recent decision in Gutkaiss v. Delaware Avenue Merchants Group, Inc. and the City of Albany, the Appellate Division, Third Department reversed a lower court’s order granting a plaintiff’s partial motion for summary judgment predicated on Labor Law § 240(1), holding that routine maintenance does not satisfy the requirement that the worker be involved with a “repair of a structure.” The decision narrowly defines the activities covered by the statute by expanding on the Court of Appeals’ decision in Munoz v. DJZ Realty, LLC, which held that “tasks associated with decorating a structure do not fall within the scope of Labor Law § 240(1).”

In Gutkaiss, defendant Delaware Avenue Merchants Group, Inc. elected to wrap strands of decorative LED lights around light poles located on Delaware Avenue. The lights were purely decorative and provided no utility to the light poles or street below. Approximately five years after the initial installation of the lights, Gutkaiss was hired as an independent contractor to replace the light bulbs that were no longer working properly. During the course of replacing the lights, one of the light poles fell over, causing Gutkaiss to fall from a 16-foot aluminum-rung extension ladder.

The 1997 Perchinsky v. State of New York case established that a worker must demonstrate “that he or she was involved in the repair of a structure” in order for the protections of Labor Law § 240(1) to apply. In Gutkaiss, the court differentiated between a “repair” under the statute and “routine maintenance,” holding that the replacement of the decorative lights––albeit necessary for the lights to operate––did not rise to the level of a “repair” as mandated by the statute. By classifying this work as routine maintenance, the Third Department’s decision in Gutkaiss restrains the definition of “repair” previously set forth in Munoz to only include work unrelated to maintenance or ornamentation.

Simply put, tasks associated with decorating a structure do not fall within the scope of Labor Law § 240(1), and, therefore, any work performed that does not serve the strict purpose of repairing the structure itself cannot support an action predicated upon Labor Law § 240(1).

The court’s decision in Gutkaiss is important for litigants to consider, as it further narrows the scope of work that falls within the parameters of Labor Law § 240(1) and places a higher burden on plaintiffs to establish the work performed is actionable.

If you have any questions regarding the content of this alert, please contact Allen Light, associate, at or another member of the firm’s Torts & Products Liability Defense Practice Area.


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