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ALTHOUGH PLAINTIFF FELL FROM THE SCAFFOLDING SYSTEM CONSTRUCTED BY SWING, A SUBCONTRATOR, PLAINTIFF’S LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST SWING SHOULD HAVE BEEN DISMISSED; SWING WAS NOT A CONTRACTOR OR OWNER, OR A CONTRACTOR’S OR OWNER’S STATUTORY AGENT, WITHIN THE MEANING OF THE STATUTES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against Swing, the company which constructed  the scaffolding, should have been dismissed. Plaintiff fell when, instead of using the scaffold walkway system, he attempted to descend from some scaffolding pipes to the wooden walkway and a wooden plank broke:

The lower court should have dismissed the Labor Law §§ 240(1) and 241(6) claims as against Swing, the scaffold system subcontractor to general contractor 4 Star, because it is undisputed that Swing was not a contactor or owner within the meaning of the statutes. Nor was it a contractor or owner’s statutory agent. Although it contractually retained the right to reenter the premises and inspect the scaffold system, Swing did not have any employees on site during 4 Star’s work, and it did not inspect the scaffold system while it was in place … . For all intents and purposes, once Swing constructed the scaffold system, it returned to the premises only to deliver supplies and to disassemble the scaffold system at the end of the project. Guevara-Ayala v Trump Palace/Parc LLC, 2022 NY Slip Op 03049, First Dept 5-5-22

Practice Point: Here the subcontractor which constructed the scaffolding from which plaintiff fell was not a contractor or owner, or a contractor’s or owner’s statutory agent within the meaning of Labor Law 240(1) or 241(6). Therefore the Labor Law 240(1) and 241(6) causes of action against the subcontractor should have been dismissed.

 

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