In the recently decided Neil v Areeba, Inc. (2026), the Second Department held that a building porter injured while moving materials delivered for the ongoing construction at the property was not entitled to the protections of Labor Law § 240(1), which only applies when an injured employee is engaged in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure. However, the plaintiff was permitted to amend his complaint to add claims under Labor Law § 200, which codifies the common-law duty of an owner or general contractor to maintain a safe workplace.

The plaintiff was the full-time porter for a building undergoing construction. He alleged that he was tasked with cleaning the outdoor courtyard/alleyway and was injured when he tried to move plywood that was delivered for the construction project. The plaintiff testified that the loose sheets of plywood fell over and struck him. During discovery, he sought leave to amend his complaint to add claims under Labor Law § 200 and Labor Law § 240(1). The Queens County Supreme Court denied the plaintiff's motion seeking leave to amend the complaint to add causes of action sounding in violations of Labor Law §§ 200 and 240(1).

On appeal, the Second Department affirmed the denial of leave to add the Labor Law § 240(1) claim, determining that the plaintiff was not engaged in covered work under the statute. The Appellate Division also modified the order and held that the lower court improvidently exercised its discretion in denying leave to add a claim based upon Labor Law § 200. The decision reinforces the principle that Labor Law § 240(1) does not extend to routine maintenance performed by a porter. Meanwhile, Labor Law § 200 is broader and is not confined to construction work.  

Practical takeaway: Not all injuries that occur while working at a building under construction are subject to the protections of Labor Law §§ 200 and 240(1). What the plaintiff was doing at the time, who they were doing it for, and why they were doing it are major factors. This decision confirms that a plaintiff injured while performing non-construction work may pursue a Labor Law § 200 cause of action. But a Labor Law § 240(1) claim will fail if the plaintiff was performing routine maintenance rather than one of the statute's specifically protected activities.