Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/08/Lauria-v.-Lippolis-Constr.-Inc.pdf">Lauria v. Lippolis Constr., Inc.</a>,</em> 2023 NY Slip Op 04374 (2^nd Dept. 2023), a building inspector working for the Village of Port Washington was on a construction site. He lowered himself into an open excavation and then tripped and fell while inside the excavation. He subsequently filed suit against the property owner and general contractor under Labor Law Sections 200, 240(1), and 241(6). The defendants eventually filed their motion for summary judgment arguing plaintiff had no relief under Labor Law §§ 200, 240(1), and 241(6) because he was not an employee at the time of the accident. The trial judge granted the motion and the plaintiff appealed.

The Second Department reasoned that in order to obtain relief under Labor Law §§ 200, 240(1), and 241(6), a plaintiff must first prove he was permitted to work on a building or structure and that he was hired by a either the owner, general contractor or a subcontractor. The Court also felt that whether inspection work falls within the umbrella of the Labor Law must be determined on a case-by-case basis, depending on the type of inspection work. The deposition testimony and evidence showed that neither the plaintiff nor his employer, the Village of Port Washington, had been hired to do any work on the construction site, and that the plaintiff was only performing a visual inspection of the excavation after the property had already been fully excavated.

This case provides insight into a small caveat of Labor Law, which excludes an inspector, or someone of that profession, not hired by the property owner, general contractor or a subcontractor, who comes on to the construction site and is injured as a result of his work there. The distinction falls on whether an inspector is a “covered” person under Labor Law §§ 240 (1) and 241 (6) if “his inspections were essential, ongoing, and more than mere observation" (<em>Dubin v S. DiFazio &amp; Sons Constr., Inc</em>., 34 AD3d at 627; see <em>Prats v Port Auth. of N.Y. &amp; N.J.,</em> 100 NY2d 878 [2003]; cf. <em>Martinez v City of New York</em>, 93 NY2d 322 [1999]).

Thanks to Ray Gonzalez for his assistance with this article.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.