The Appellate Division, First Department, in Manfredonia v 750 Astor LLC, 217 AD3d 573, (1^st Dept. 2023), published in June, affirmed the lower Court's grant of summary judgment to the plaintiff in his Labor Law Section 240 claim, concluding that the plaintiff was not engaged in routine maintenance and was covered by the extraordinary protections of the Labor Law.

Labor Law Section 240(1) applies to all contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure. While repair is specifically enumerated as a type of work covered under the statute, New York courts have long excluded so-called "routine maintenance" from the scope of the Labor Law.

Here, the plaintiff was injured when he fell from a ladder while performing his work. On the motion, he submitted deposition testimony showing that he was on-site to repair a drain pipe on a third-party defendant tenant's HVAC unit that needed to be removed and reset at the correct angle when the extension ladder he was using collapsed as he descended. The Appellate Division concluded that this evidence was sufficient to establish his entitlement to summary judgment under Labor Law Section 240(1) as a matter of law.

In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as "whether the work in question was occasioned by an isolated event as opposed to a recurring condition"; whether the object being replaced was "a worn-out component" in something that was otherwise "operable"; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement. Soriano v St. Mary's Indian Orthodox Church of Rockland, Inc., 118 AD3d 524, (cleaned up) (1^st Dept. 2014).

Here, the Court determined that the record established that the plaintiff's work rose to the level of "repair" under the statute and was not routine maintenance. Specifically, the Court noted that the defendants "failed to proffer any evidence to contradict the plaintiff's explanation of the work he planned to perform."

The key takeaway is that unless defendants are able to secure competent testimony (preferably expert testimony) disputing the nature of the plaintiff's work and showing that the work the plaintiff was performing was routine, the kind that occurs periodically, the Court will likely find that the work is covered under the statute. To the extent feasible, defendants must make every effort to secure such testimony or evidence.