A line of cases exists at the New York Court of Appeals regarding whether a worker was performing work that constituted a protected activity under Labor Law sec. 240(1) at the time of his or her injury (see prior post). The Court decided a recent case -- Schroeder v. Kalenak Painting & Paperhanging, Inc. -- in which the plaintiff was concededly performing a non-enumerated activity, but attempted to blur the line by arguing that her work was part of a larger renovation project that included work covered under Labor Law sec. 240(1).
The plaintiff in Schroeder fell from a ladder while wallpapering at an apartment complex as part of preparation work to re-lease a particular apartment. The wallpapering of the apartment was part of the preparation, which also included painting certain doors, replacing the kitchen counter and floor, installing several new appliances, re-carpeting the entire apartment and replacing the wallpaper in the bathroom. The plaintiff was hired for wallpapering only.
The Court agreed with the Majority of the Fourth Department, concluding that the plaintiff failed to allege sufficient facts to establish that her work was part of a larger renovation project subject to coverage under the statute. The Court cited Martinez v. City of New York. This citation indicates to me that the Court viewed the plaintiff's wallpaper work as constituting distinctly separate non-enumerated work from the larger renovation project.
I'm looking forward to a case where the Court addresses just how close the separation between non-enumerated and enumerated work can be. I actually just argued an appeal that might fall within those parameters and I'll report to you the result when the decision is handed down.
Another Labor Law case buried in SSM treatment!!
Posted by: Michael Hutter | September 13, 2006 at 03:48 PM