Is Routine Cleaning Protected Under the Labor Law
The Labor Law protects a plaintiff when he or she is engaged in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure. But what defines cleaning?
In the case of Healy v. EST Downtown, LLC, 191 A.D.3d 1274 (4th Dep’t 2021), plaintiff was employed as a maintenance and repair technician by a certain building property manager. Plaintiff’s regular duties included making the building’s rental properties ready for incoming tenants by doing various things such as repairing fixtures and painting. On the day of his accident, plaintiff was responding to a commercial tenant’s work order by removing a bird’s nest, when he fell from an unsecured eight-foot ladder that moved when a bird suddenly flew out of the nest. On appeal, the Court of Appeals reversed the Fourth Departments holding and granted defendant’s motion to dismiss plaintiff’s Labor Law §240(1) claim.
The court in Healy v. EST Downtown, LLC, 2020 NY Slip Op 02836, 38 NY3d 998 (April 28, 2022), held that 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 plaintiff’s work was “cleaning” under the statute, courts apply a four-factor analysis, the first of which requires that the work be routine in the sense that it is a type of job that occurs relatively frequently and on a recurring basis as part of the ordinary maintenance and care of commercial premises.
The court reasoned that plaintiff’s work was routine cleaning and thus, plaintiff’s activity could not receive protection under the Labor Law.
Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, contact Andrew Gibbs.