In a recent decision, Acevedo-Espinosa v RH 250 Sherman Ave., LLC, 2024 NY Slip Op 04365, the Appellate Division, Second Department, addressed the class of workers to whom the extraordinary protections of Labor Law Section 240 apply. In doing so, they reaffirmed that there must be a requisite nexus between the plaintiff and the defendants, or the statute will not apply. 

The decision itself does not recite many of the relevant facts. But the decision on appeal at the lower court (under Index Number 602286/2018, Supreme Court, Nassau County, decision entered January 13, 2023) shows that the plaintiff was an employee of a non-party retained by a tenant of the building, who was also the building's superintendent. The super retained the non-party cable installation company to install the cable in his apartment. He did so with his own money and without any knowledge or consent from the defendants. 

The Appellate Division held that the defendants had established that the requisite nexus between the plaintiff and the defendants simply did not exist, affirming the lower court's decision to dismiss the plaintiff's Section 240 claim. 

The Court cited a 2004 Court of Appeals decision that held that "[t]o come within the special class for whose benefit absolute liability is imposed, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it the owner, contractor, or their agent." Abbatiello v Lancaster Studio Assoc., 3 NY3d 46 (2004). 

Here, the defendants, i.e., the building's owner, management company, and maintenance company, established that the plaintiff was working on the premises without their knowledge or authorization. Moreover, the tenant who retained the plaintiff, while he was the building super, retained the plaintiff's employer for the installation with his own money, and there was no evidence that he retained them as part of his employment. 

Bottom line: any analysis of Labor Law Section 240 claims should begin with a preliminary question of whether this requisite nexus exists. Before addressing whether the Labor Law was violated, there should be an analysis as to whether the special protections of the statute extend to the plaintiff in the first instance. If they do not, liability under the statute cannot lie.