Response to Flooding Caused by Storm Not “Routine Maintenance”

The First Department determined that summary judgment should not have been granted in favor of the defendant in a Labor Law 240 (1) action.  Plaintiff was called to address flooding caused by severe weather and fell into an open manhole.  The motion court granted the defendant’s motion for summary judgment finding that plaintiff was engaged in routine maintenance.  The First Department found that a manhole is a “structure” within the meaning of the statute and that there was a question of fact about whether plaintiff was engaged in “repair” or “routine maintenance:”

Whether a particular activity constitutes a “repair” or routine maintenance must be decided on a case-by-case basis, depending on the context of the work … . A factor to be taken into consideration is whether the work in question was occasioned by an isolated event as opposed to a recurring condition. * * * The record here demonstrates that the work performed by plaintiff at the time of his injury was far from routine.  Dos Santos v Consolidated Edison of NY, Inc, 2013 NY Slip Op 02140, 8914, 105861/08, 1st Dept 3-28-13