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PLAINTIFF STEPPED IN A HOLE WHEN DELIVERING TILES TO THE WORK SITE; HE WAS PERFORMING WORK “NECESSARY AND INCIDENTAL” TO THE INSTALLATION OF THE TILES AND THEREFORE WAS PROTECTED BY LABOR LAW 240(1); A SUBCONTRACTOR WILL NOT BE LIABLE UNDER THE LABOR LAW AS A STATUTORY AGENT OF THE OWNER OR GENERAL CONTRACTOR UNLESS THE SUBCONTRACTOR HAS AUTHORITY OVER THE AREA WHERE PLAINTIFF WAS INJURED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was delivering tiles to the construction site when he stepped into a hole near the loading ramp. Although plaintiff was not himself engaged in work covered by Labor Law 240(1), he was performing work “necessary and incidental” to the installation of the tiles. The court noted that the action against a subcontractor was properly dismissed because the subcontractor did not exercise any authority over the area where plaintiff was injured and therefore could not be considered a “statutory agent” under the Labor Law:
Labor Law § 240(1) protects persons engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The task that a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under this statute … . Rather, the inquiry includes whether the plaintiff’s employer was contracted to perform the kind of work enumerated in the statutes … and whether the plaintiff was performing work “necessary and incidental to” a protected activity … . Because plaintiff’s work in delivering and unloading tiles to be used in the activity covered by Labor Law § 240(1) was “necessary and incidental” to the protected activity, he was within the class of workers protected by those statues, notwithstanding that he was not assigned to participate in the installation of the tiles … .
… Labor Law §§ 200, 240(1), and 241(6) only apply to owners, general contractors, and their statutory agents … . “To be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury. If the subcontractor’s area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory” … . Here, [the subcontractor’s] work as the electrical contractor was limited to providing electrical installation and temporary lighting, and did not encompass either tile work or maintaining the temporary ramp or surrounding areas. Rodriguez v Riverside Ctr. Site 5 Owner LLC, 2025 NY Slip Op 04221, First Dept 7-17-25
Practice Point: Delivering materials to a work site is necessary and incidental to the construction work and is therefore a covered activity under Labor Law 240(1).
Practice Point:  A subcontractor will not be liable to an injured worker as a statutory agent of the owner or general contractor unless the subcontractor exercises authority over the area where the injury occurred (not the case here).
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