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QUESTIONS OF FACT WHETHER PLAINTIFF WAS DOING REPAIR WORK OR ROUTINE MAINTENANCE PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there were questions of fact whether defendant had notice of the dangerous condition created by oil dripping on the floor (Labor Law 200), and whether plaintiff was engaged in repair (covered by Labor Law 240(1) and 241(6)) rather than routine maintenance (not covered) when working on the garage door:

There was evidence in the record that automotive services were being performed on the defendants’ premises by its employees, including changing oil filters and disposing the used oil filters into oil drums, and that oil was dripping from a spigot attached to a barrel close to the location of the plaintiff’s accident. This evidence raises a triable issue of fact as to whether the defendants created a dangerous or defective condition, or had actual or constructive notice of such a condition without remedying it within a reasonable time … . …

… [T]he injured plaintiff testified at his deposition that when the accident occurred, he was attempting to remove a bearing plate in order to replace a broken spring on the garage door. He also testified that one of the bolts of the bearing plate was stripped, so he had to widen the hole so that it would accept another bolt. …

Labor Law § 240(1) applies where an employee is engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” but does not apply to “routine maintenance” … . Here, the evidence raises a triable issue of fact as to whether the injured plaintiff was involved in a repair or routine maintenance at the time of the accident … .

Labor Law § 241(6) applies to construction, excavation, or demolition work. Construction work is defined in 12 NYCRR 23-1.4 as including the “repair, maintenance, painting or moving of buildings or other structures.” Thus, there are triable issues of fact as to whether Labor Law § 241(6) was violated in this matter … . Nusio v Legend Autorama, Ltd., 2023 NY Slip Op 04385, Second Dept 8-23-23

Practice Point: Routine maintenance is not covered by Labor Law 240(1) or 241(6) but repair work is. Here plaintiff was working on the garage door mechanism which required replacement of a stripped bolt. There was a question of fact on the repair versus routine-maintenance question.

 

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