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PLAINTIFF WAS REPAIRING THE FLASHING ON THE ROOF, NOT DOING ROUTINE MAINTENANCE, AT THE TIME HE WAS INJURED ENTITLING HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was performing repairs, not routine maintenance, when he was injured, entitling him to summary judgment on the Labor Law 240(1) cause of action:

“Delineating between routine maintenance and repairs is frequently a close, fact-driven issue . . . , and that distinction depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work . . . , and whether the work involved the replacement of components damaged by normal wear and tear” … . Here, the testimony submitted by plaintiffs established, and the court found, that the rubber flashing was malfunctioning and inoperable prior to replacement and that the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of the roof. To the extent that defendant asserts that the flashing plaintiff was repairing at the time of his fall was not actively leaking, such a contention is immaterial to whether plaintiff was performing a protected activity, inasmuch as it would be “[in]consistent with the spirit of the [Labor Law] to isolate the moment of injury and ignore the general context of the work” … .

Further, contrary to the court’s determination, we agree with plaintiffs that the rubber flashing was not merely a “component” of a ventilation system and instead was an integral part of a proper functioning roof. Here, plaintiff was performing roofing repair to ensure that the roof of the concession stand was no longer leaking—precisely the type of work that we have long held to be protected by Labor Law § 240 (1) … . Verhoef v Dean, 2024 NY Slip Op 06465, Fourth Dept 12-20-24

Practice Point: Here plaintiff was repairing the roof when he was injured. He was not performing routine maintenance. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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