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Labor Law 240(1), found applicable to window washer apparently an “Honorary” Caulker

April 2, 2014 • Posted By Joseph A. French • Complex Litigation

De Jesus v. 888 Seventh Avenue LLC, 2014 NY Slip Op 01273 (App. Div., 1st Dept.).

The First Department recently reviewed a caulker’s claim to relief pursuant to Labor Law 240(1), and in so doing reversed the lower court’s summary judgment in favor of the owner.

Plaintiff was operating a swing scaffold when injured after falling through the scaffold’s rail track.  Although he “ was not operating the scaffold in his capacity as a window washer at the time of the accident, he was operating it for the caulkers who could not have safely discharged their duties without him.  Since caulking is an activity of the sort enumerated in Labor Law § 240(1) plaintiff is entitled to the same statutory protection as the caulkers.”  There was also evidence that the lanyard and harness provided to protect him were inadequate, and therefore plaintiff was entitled to summary judgment on the issue of liability on that claim.  It appears that although not a window washer when injured, presumably his customary job, the court essentially made plaintiff an “honorary” caulker, even though he was not part of the caulking crew, thereby allowing him to be protected. While the decision is understandable, the difficulty lies with the court again expanding coverage to a worker who was only tangentially participating in an enumerated activity, and who himself was not a worker subject to Labor Law 240(1).