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“Cleaning” Within the Meaning of Labor Law 240(1) Explained

The Second Department determined defendants were not entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) action. Plaintiff fell from a 20-foot ladder while cleaning windows.  The defendants were unable to demonstrate that the activity plaintiff was engaged in was not covered by Labor Law 240(1):

Labor Law § 240(1) provides protection for those workers performing maintenance that involves painting, cleaning, or pointing … . Other than commercial window cleaning, which is afforded protection pursuant to the statute …, whether an activity is considered “cleaning” for the purpose of Labor Law § 240(1) depends on certain factors. An activity is not considered “cleaning” when (1) it is performed on a routine or recurring basis as part of the ordinary maintenance and care of commercial premises, (2) does not require specialized equipment or expertise, (3) usually involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) is unrelated to any ongoing construction, renovation, painting, alteration, or repair project … . “Whether [an] activity is cleaning’ is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other” … .

The evidence submitted by the defendants in support of their motion failed to establish, prima facie, that the plaintiff’s activity at the time of the accident could not be characterized as “cleaning” under Labor Law § 240(1). The evidence did not definitively demonstrate that the plaintiff was performing a routine task or that it was a task that involved an insignificant elevation risk which was comparable to those risks inherent in typical household cleaning … . Pena v Varet & Bogart LLC, 2014 NY Slip Op 05524, 2nd Dept 7-30-14

 

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