News & Blog

Routine cleaning does not fall within Ambit of Labor Law §240(1)

February 5, 2014 • Posted By Joseph A. French • Complex Litigation, Construction Claims

Several recent decisions addressed the issue of whether cleaning falls within the Ambit of Labor Law §240(1).

The first decision is the Court of Appeals’ affirmation of the decision granting summary judgment to the defendant store.  Soto v. J. Crew Inc., 21 N.Y. 3d 562 (2014).  An employee of a commercial cleaning company, plaintiff fell from a four (4) foot ladder while dusting a six (6) high shelf.  The ladder was by all accounts in proper working order.  The court analyzed recent “cleaning” decisions, and reiterated its concern that the statute should not be barred to “encompass virtually every kind of cleaning task”.  While commercial window cleaning is an activity covered by the statute, the court rejected “plaintiff’s argument that the legislature intended to cover all cleaning that occurs in a commercial setting, no matter how mundane.” 

Indeed the Court stated “an activity cannot be characterized as “cleaning” under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law §240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.  Whether the activity is “cleaning” is an issue for the court to decide after reviewing all *569 of the factors.  “Given these factors, plaintiff’s cleaning and dusting was deemed routine maintenance, that did not require specialized equipment, the elevation risk here was similar to a domestic cleaning chore, and the activity was unrelated to an ongoing construction, renovation, etc., job.

Ten days after the decision, the Second Department, guided by the Soto decision, affirmed an award of summary judgment to defendants, and held that the statute did not apply to temporary debris from gutters. Hull v. Fieldpoint Community Association, 110 A.d.3d 961 (2d Dept. 2013). Plaintiff’s employer had a contract with the defendant that required, inter alia, gutters to be cleaned three (3) time each year.  Labor Law §240(1), the court held, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris.

The guidelines set forth in Soto should provide clear guideline to the practioner when confronting cleaning tasks that should be consider part of a routine maintenance protocol.