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Defining Construction Work Under Labor Law 241(6) (NY)

November 4, 2021

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<p style="text-align: justify;">When a plaintiff becomes injured on a construction project, it is important to know exactly what kind of work the plaintiff was performing at the time of the accident, and the purpose of the work, to determine liability under Labor Law 241(6).</p>
<p style="text-align: justify;">Labor Law 241(6) imposes a nondelegable duty on property owners and contractors to provide reasonable and adequate protection and safety to those performing work on the property and to comply with specific safety rules. This section of the Labor Law is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work to be of the type performed in the “construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures.” Workers not performing this type of work are not protected under Labor Law 241(6).</p>
<p style="text-align: justify;">This scenario was discussed in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/11/Marney-v.-Cornell-Kent-II-Holdings-LLC.pdf">Marney v. Cornell Kent II Holdings, LLC</a>,</em> 194 A.D.3d 917 (2d Dep’t 2021), where a plaintiff was injured when a drill he was using to take soil samples malfunctioned. Plaintiff sued the contractor and owner of the premises, asserting claims for liability under Labor Law 241(6) and common law negligence under Labor Law 200. The Supreme Court granted defendants’ summary judgment finding, in relevant part, that Labor Law 241(6) did not apply under the circumstances.</p>
<p style="text-align: justify;">The Second Department affirmed, find that there was no liability under Labor Law 241(6) because the plaintiff was not engaged in construction, or any other work covered under the section. Instead, the court held that his work was part of a geotechnical investigation to determine the properties of the soil and its suitability for excavation and construction. Such investigatory work is not covered under Labor Law 241(6). The court also dismissed the Labor Law 200 claim because neither the owner nor the contractor supervised, directed, or controlled Plaintiff’s work.</p>
<p style="text-align: justify;">The <em>Marney</em> case shows that not all work performed at a construction project will be subject to the Labor Law and that a New York court will examine the type and purpose of the work to determine whether Labor law protection applies.</p>
<p style="text-align: justify;">Thank you to Gabriella Scarmato for her contribution to this post. Please e-mail <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>

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