James Healy v. EST Downtown

• Court: New York Court of Appeals
• Decided: April 28, 2022
• Docket: 27
• Status: Published

Opinion

State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 27 James Healy, Respondent, v. EST Downtown, LLC, c/o First Amherst Development Group, Appellant.

James J. Navagh, for appellant. Jonathan M. Gorski, for respondent.

MEMORANDUM:

The order of the Appellate Division should be reversed, with costs, plaintiff’s

motion for partial summary judgment on his Labor Law § 240 (1) claim denied, and

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defendant’s motion for summary judgment dismissing the Labor Law § 240 (1) claim

granted.

Labor Law § 240 (1) requires certain contractors and property owners to provide

adequate safety devices when workers engage in particular tasks involving elevation-

related risks. To recover under section 240 (1) for an injury caused by a failure to provide

such safety devices, plaintiffs must first show that they were engaged in one of that

section’s enumerated activities including, among others, “cleaning.” To determine

whether an activity is “cleaning” within the meaning of the statute, courts apply a four-

factor analysis (see Soto v J. Crew Inc., 21 NY3d 562, 568 [2013]). The first factor

considers whether the work is “routine, in the sense that it is the type of job that occurs on

a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary

maintenance and care of commercial premises” (id. [emphasis added]). This factor does

not involve a fact-specific assessment of a plaintiff’s regular tasks—it instead asks whether

the type of work would be expected to recur with relative frequency as part of the ordinary

maintenance and care of a commercial property (see id. at 569).

Here, plaintiff’s work was “routine” within the meaning of the first factor, which

therefore weighs against concluding that he was “cleaning.” “[V]iewed in totality,” the

Soto factors do not “militate in favor of placing the task” in the category of “cleaning” (id.

at 568-569). Plaintiff’s other coverage arguments are similarly unavailing; thus his work

does not fall within the ambit of Labor Law § 240 (1)’s protection. Plaintiff’s remaining

arguments lack merit or are rendered academic by our decision.

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Order reversed, with costs, plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim denied and defendant's motion for summary judgment dismissing the Labor Law § 240 (1) claim granted, in a memorandum. Chief Judge DiFiore and Judges Rivera, Garcia, Wilson, Singas, Cannataro and Troutman concur.

Decided April 28, 2022

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