BREAKING GROUND

Trends In New York Construction Law

06
FEB
2017

Revisiting the Routine Maintenance Defense

The Appellate Division, First Department recently issued a short but telling decision regarding what factors it considers in contrasting repair work (which is afforded the protections of Labor Law §240(1)) versus routine maintenance (which is not). In Roth v. Lenox Terrace Associates , an HVAC contractor was hurt when, after replacing a small component part to an air conditioning unit atop a roof of the defendants’ building, he fell while descending a 20 foot extension ladder that allegedly shifted. The work was being performed pursuit to a maintenance contract that his employer had with the defendants. After summary judgment motions were filed by both sides, the lower court granted defendants summary judgment finding that the work entailed routine maintenance which does not constitute one of the seven protected categories of work under Labor Law §240(1).

On appeal, the First Department reversed and found issues of fact as to whether this work constituted unprotected routine maintenance or protected repair work. In doing so, the Court paid particular attention to the specific component part of the AC unit that was being replaced. Plaintiff testified that this component part generally lasts the life of the AC unit and therefore, in the Court’s eyes, its replacement was not necessarily “a recurring event.” The fact that the component part was worn-out due to normal wear and tear, the work took no longer than 20 minutes and, presumably, the work involved no extra degree of difficulty than replacing a filter was not enough to sway the decision dispositively in defendants’ favor.

One wonders if the decision would have been different if an expert was used to vet plaintiff’s self-serving testimony about the expected shelf-life of the component part. But considering the case was in the First Department, probably not.

 

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Paul Howansky

Paul Howansky is a partner at Harrington, Ocko & Monk, LLP where he specializes in handling insurance coverage disputes, construction litigation and subrogation claims. He also manages the firm's appellate practice. Mr. Howansky earned his J.D. from Hofstra University School of Law, where he served as Articles Editor for the Hofstra Law Review. If you have any questions regarding construction law issues, please contact Paul at (914) 686-4800 or via e-mail phowansky@homlegal.com.