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Prats v. Port Authority of New York and New Jersey, 2003 NY Int. 110
(October 21, 2003).




Whether inspections of construction work performed as part of a single construction and alteration contract fall within the protected enumerated activity of "altering" under New York Labor Law § 240(1).


Yes. Inspections of construction work done in the course of fulfilling a construction contract involving an enumerated activity protected by § 240(1), such as "altering," fall within the purview of § 240(1).


AWL Industries ("AWL") contracted with Defendant to clean, repair and rehabilitate air conditioning systems, including any necessary inspection and construction work related to the project, such as constructing walls, leveling floors and laying concrete. While employed as an assistant mechanic for AWL, Plaintiff sustained injuries after falling from a ladder while inspecting an air conditioner unit that he was helping to repair. Plaintiff brought a civil action in the United States District Court for the Southern District of New York, alleging a violation of New York Labor Law § 240(1). The District Court granted summary judgment in favor of Defendant on the § 240(1) claim. Plaintiff appealed to the Second Circuit, which certified to the New York Court of Appeals the question of whether inspections of construction work fall within the purview of Labor Law § 240(1). The Court accepted certification and answered the question in the affirmative.

Labor Law § 240(1) provides protection for workers engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." The Court held that although inspection is not a § 240(1) enumerated activity, it is important to look at the general context of the work performed when determining whether certain inspection activities fall within the purview of § 240(1). Here, Plaintiff's inspection activity was part of the ongoing and contemporaneous construction and alteration work performed by AWL pursuant to a single contract; therefore, the Court held that Plaintiff's inspection activity fell within § 240(1). The Court distinguished this case from Martinez v. City of New York, 93 N.Y.2d 322 (1999), where an inspector suffered injuries while performing an asbestos inspection contract which was separate from the contract to remove the asbestos. The Court emphasized that the two contracts in Martinez involved different contractors and different employees, therefore the inspection activity was not covered by § 240(1).

The Court also found that Plaintiff was engaged in alteration, an enumerated activity, and not mere routine maintenance as argued by Defendant. In making this determination, the Court noted that "constructing walls and leveling floors are at least as significant as drilling through concrete, the threshold for altering [the Court] identified in Joblon." Furthermore, the Joblon "time of injury" test does not bar Plaintiff's recovery in light of the general context of the work. Joblon v. Solow, 91 N.Y.2d 457 (1998). AWL hired Plaintiff substantially to do alteration work, therefore § 240(1) protected him even though he was engaged in inspection work at the time of the accident. Therefore, the Court held that the certified question should be answered in the affirmative.

Prepared by the liibulletin-ny editorial board.