WHETHER “CLEANING” IS A COVERED ACTIVITY UNDER LABOR LAW 240(1) DEPENDS ON WHETHER THE CLEANING WORK IS “ROUTINE;” “ROUTINE” CLEANING WORK IS NOT COVERED (CT APP).
The Court of Appeals, reversing the Appellate Division, determine plaintiff should not have been awarded summary judgment on the Labor Law 240(1) cause of action and defendant’s summary judgment motion should have been granted. The issue was whether plaintiff was injured doing “cleaning” work covered by the Labor Law. The Court of Appeals held plaintiff was doing “routine” work, which therefore did not qualify as “cleaning” under Labor Law 240(1). The facts were not explained:
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). Healy v EST Downtown, LLC, 2022 NY Slip Op 02836, CtApp 4-28-22
Practice Point: Injury while “cleaning” is not covered under Labor Law 240(1) if it is “routine.”