Appellate Division, First Department Applies Salazar versus Novalex Contracting Corp. in Recent Labor Law sec. 240 (1) Case

_fbbebbc9-5c48-413a-838c-aa06c7c4e62eLabor Law § 240 (1), New York's Scaffold Law, certainly has a broad reach. A recent New York Appellate Division, First Department case—Marte v Tishman Constr. Corp.—provides one example of the limits of the statute.

Before discussing Marte, a short discussion of    Salazar v Novalex Contracting Corp. is necessary. Salazar stands for the proposition that a court will not find a Labor Law § 240 (1) violation when the use of a safety device would have been impractical and contrary to the very work at hand. The plaintiff's work in Salazar was to pour and spread concrete on a basement floor. The outer sections on the floor had a trench system with holes. The plaintiff's accident happened when he was "pulling" the concrete and walking backwards, ultimately stepping into one of the holes in the trench and injuring himself. The plaintiff argued that there should have been some type of protective device covering the trench to prevent workers from stepping into holes.

The New York Court of Appeals cut to the heart of the issue, stating that it was not going to quibble about whether there was actually a device to cover the trench system and, if so, whether the device would come within the term "other devices" stated in the statute. Instead, the Court focused on whether such a device would frustrate the task at hand. The plaintiff was tasked with spreading concrete across the entire basement floor, including the trenches. The Court stated, "[I]t would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete." Stating that there should be a common-sense approach to the realities of the workplace at issue, the Court concluded that Labor Law § 240 (1) did not apply.

That brings us to Marte. The plaintiff in Marte was laying rebar and somehow fell four feet below the rebar deck he was standing on while working. In support of his section 240 (1) claim, the plaintiff argued that there should have been plywood or wooden plank on top of the rebar deck to protect him from falling through it. Noting that there was testimony that concrete was going to be poured over the rebar following the work in which he was engaged, the First Department concluded that the motion court properly denied the motions of all parties on the Section 240 (1)  claim. The First Department cited Salazar for its conclusion, indicating the realities of the plaintiff's work made it impractical to place plywood and wooden planks on the rebar deck.  

My law partner at Gerber Ciano Kelly Brady LLP, Brendan Fitzpatrick, wrote the appellate brief and argued the appeal. 

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