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What is an Alteration Under Labor Law 240(1) and What Happens If No One Saw My Construction Accident?

What is an Alteration Under Labor Law 240(1) and What Happens If No One Saw My Construction Accident?

Labor Law 240(1) is one of the strongest legal protections for construction workers, both in New York City and statewide. This law provides for the right of workers engaged in certain work activities to bring a lawsuit against worksite owners, contractors, and their agents for injuries arising from their failure to provide the workers proper protection from elevation hazards on the site, like working from scaffolds and ladders, and from falling objects that should be secured.

In a recent case decided by the Appellate Division, First Department in Manhattan, Benjamin Concepcion v. 333 Seventh LLC, 75 N.Y.S.3d 183 (1st Dept. 2018), the Court addressed three common issues that arise during construction accident cases and decided them in favor of Concepcion, the injured worker. Concepcion fell from a six-foot A-frame ladder while tightening a bolt during the course of reconfiguring the premises’ sprinkler system to comply with the fire code. As he was performing this work, the ladder shifted, causing him to fall to the ground and sustain injuries. The Court affirmed the decision below which had,

granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, and denied defendant's cross motion for summary judgment dismissing the Labor Law § 240(1) claim.

Concepcion won summary judgment on liability, which means that he won the part of his Labor Law 240(1) case that only required him to prove that the defendants were at fault for his accident to a judge, and that he only has to go in front of a jury to prove his “damages.”

First, the Court found that the work Concepcion was performing was an “alteration,” a “covered activity” under Labor Law 240(1). This is essential because only workers engaged in covered activities are protected by Labor Law 240(1). The covered activities include “erection, demolition, repairing, altering, painting, cleaning or pointing” of buildings or structures. There are two major decisions from the New York Court of Appeals that discuss when a worker can be considered engaged in “altering” or “alteration,” Joblon v. Solow, 91 N.Y.2d 457 (1998) and Saint v. Syracuse Supply Company, 25 N.Y.3d 117 (2015).

The courts have found that “altering” in Labor Law 240(1),

“requires making a significant physical change to the configuration or composition of the building or structure,” and that this definition does not include “routine maintenance” and “decorative modifications.” See Saint, 25 N.Y.3d at 125 (quotingJoblon, 91 N.Y.2d at 465).

Joblon involved an electrician who fell from a ladder while installing a wall clock, which required him to “chop a hole through a block wall with a hammer and chisel” and “route a conduit pipe and wire through the hole.” Saint involved a worker who was injured when he fell from a billboard while removing an old advertisement and installing a new advertisement, which involved expanding the size of the billboard. In both cases, the injured workers successfully appealed earlier decisions by the courts and were found to have been engaged in “alteration.”

The second important note from Concepcion is that he was still able to win summary judgement on liability despite the fact that no one else saw the accident occur. The court was able to make that decision here because there was no other evidence in front of them that contradicted what Concepcion said or raised a question of Concepcion’s credibility.

The third note may be the most important of the three. The injured worker was still able to win liability in his case, despite the fact that he did not check to make sure that his coworker set up the ladder he was using correctly. He was still able to win because comparative negligence is inapplicable to Labor Law 240(1) cases.

In most personal injury cases in New York, all parties involved can be allocated a specific percentage of fault, and in cases where the injured worker is determined to be partially at fault, their damages award will be reduced by the amount of their fault. This is called “comparative negligence.” Under Labor Law 240(1), this does not apply. Rather, defendants can only try to prove that the injured worker or workers were the “sole proximate cause” of the accident. This is a complicated concept, but basically means that if the injured worker was the not the only cause of his accident, which he obviously wasn’t if the defendants failed to provide him with proper protection such as an unsecured ladder, then he can still go forward with his claim and even win liability without having to go to a jury.

At the Perecman Firm, we believe that a key part of our job working with injured workers includes making sure that they have a solid understanding of the laws that protect them when they are injured on the job. If you were seriously injured at work, our New York City construction accident attorneys are ready and waiting to hear about you situation and will work with you to create a plan of action that will put you in the best position to secure the maximum compensation possible. Give our firm a call at (212) 577-9325 to discuss your legal options over the phone, or set up a free case evaluation with one of our attorneys by filling out our online form today.

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