Trial Court Dismisses New York Labor Law Suit in 20-Foot Fall From Ladder Resulting in Brain Injury

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In a recent case involving millions in potential damages, an employee sued his employer alleging that he was entitled to protection under New York's Labor Law. The employee had fallen off a 20-foot ladder, and suffered severe injuries, including brain damage. TELS attorneys represented the employer and, on motion for summary judgment, were able to demonstrate to the Supreme Court of the State of New York (County of Nassau) that the employee was involved in routine maintenance. Because he was not making substantial changes to the building, he was not entitled to extraordinary protections under New York's Labor Law. The Court agreed, and dismissed the entire case with prejudice. While open to interpretation, this case and others like it may demonstrate a trend towards a narrowing, more restrictive view of the Labor Law.

TRAUB EGLIN LIEBERMAN STRAUS LLP (TELS) is pleased to announce that the Supreme Court of the State of New York, County of Nassau dismissed the case against the firm's client in its entirety with prejudice. The case was significant in that it involved multi-million dollar claims arising under New York's Labor Law. The Court held that an employee's fall from a ladder, which prompted the lawsuit in the first place, occurred during "routine maintenance" and, as such, not subject to extraordinary protections under New York's Labor Law.

The defendant in this case was Montauk Properties, owner of a shopping center which included a store that had been vacant for approximately 15 years. Montauk Properties retained Regent Management to work as the property manager for the development.

One of Regent's employees was trying to stuff small pieces of insulation into three small cracks in the wall of the vacant store. These pieces of insulation were about the size of a standard Letter-size piece of paper. Neighboring tenants had requested the insulation, since birds were getting into their store from cracks in the wall.

On the very same day, several Regent employees were working in the basement of the store dismantling a boiler. Only six months before, the interior sheetrock walls of the store had been removed.

The Regent employee used a 20 foot extension ladder to install these paper-size pieces of insulation. He placed the ladder against the wall below a crack near the ceiling. After ascending the ladder, the bottom suddenly slid away, causing the employee to fall nearly 20 feet, sustaining severe injuries and brain damage.

The employee that fell eventually sued Montauk Properties, asserting violations of New York State Labor Law §240(1), §241(6) and §200, as well as common law negligence. Upon closer examination of Regent's liability coverage, Montauk qualified as an additional insured. Montauk then commenced a third-party action against Regent seeking contractual indemnification for any judgment above the carrier's policy limit, which was $1 million.

Attorneys Robert Leff and Denis Farrell of TELS were brought in to represent Regent Properties, and immediately began to focus discovery to show that the plaintiff was engaged in “routine maintenance,” and that his activities were otherwise unconnected to the other alleged alteration/renovation activities. New York Labor Law only applies to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The Labor Law does not apply to “routine maintenance” activities.

At the close of discovery, TELS moved for summary judgment on behalf of the third-party defendant Regent, seeking dismissal of the entire case. Mr. Leff and Mr. Farrell argued that the plaintiff was engaged in “routine maintenance” and as such, the protection of the Labor Law did not apply. The Plaintiff cross-moved for summary judgment arguing that plaintiff’s activities were part of a larger renovation project that included “gutting” the store and removing the boiler.

While the motion was pending, the plaintiff made a policy limit demand from Regent's insurance carrier, and sought additional funds from Montauk’s primary insurance carrier. Montauk's insurer demanded that Regent's insurance carrier settle the matter within its policy limit.

In the end, the trial Court granted Regent’s motion dismissing the case in its entirety. In dismissing the case, the Court noted that the Labor Law only applies to the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The Court determined that based on the evidence submitted, the plaintiff was not engaged in any of these activities but was performing “routine maintenance.”

The Court held that an application of a small amount of insulation into a space with one’s hands is not a significant physical change to the building’s configuration or composition so as to constitute an alteration under the Labor Law. As to the plaintiff’s argument that his activities were part of a larger renovation project, to the extent the store had been “gutted,” that had occurred over six months prior to the accident and, thus, had no connection to plaintiff’s activities on that day.

In consideration of the boiler work going on, the Court also ruled there was no evidence that the dismantling of the boiler constituted an alteration or was otherwise connected to plaintiff’s work on the day of the incident. Accordingly, the Court found no connection between the alleged “larger” alteration project and the plaintiff’s activities on the day of the accident. The Labor Law §241(6) claim was similarly dismissed as the plaintiff was not engaged in “construction, demolition or excavation.” The Labor Law §200 and negligence claims were also dismissed as there was no evidence that Montauk supervised or controlled the plaintiff’s work nor created the alleged dangerous condition.

The decision is encouraging in that it arguably demonstrates that the trend of restricting the reach of the Labor Law as set forth in recent decisions of the New York State Court of Appeals is having an impact at the trial level. In appropriate cases, TELS believes summary judgment motions should be made as such motions not only force a plaintiff to lay bare their proof and thus enhance settlement positions, but the motions can result in a complete dismissal in what may otherwise be a policy limits case.

The case was James v. Montauk Properties, LLC., et ano. (Court Index No. 6558/04)

TELS congratulates Robert Leff and Denis Farrell for their diligent work on this case. For more information on Mr. Leff, a partner with TELS, please visit:

And for additional background on Mr. Farrell, an associate with TELS, please click on:


TRAUB EGLIN LIEBERMAN STRAUS LLP (TELS) has achieved a national reputation for excellence in legal representation. Our philosophy is to provide quality legal representation in an expeditious and efficient manner. Our emphasis on client service, as well as our reputation in the legal community, has served our clients and the firm well. TELS has been recognized by many, including Martindale-Hubbell, for outstanding legal ability and ethical standards. For more information, visit us online at


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