Scaffold Law (Labor Law 240(1)) Held Not Applicable to Lessee Where Window Washer is Injured

In Ferluckaj v. Goldman Sachs & Co., — N.E.2d —-, 2009 WL 856304, 2009 N.Y. Slip Op. 02483(decided April 02, 2009), the Court of Appeals declined to apply the New York Scaffold Law(Labor Law 240(1)) to a worker who was injured while cleaning an interior window as part of the preparation of new office space leased by Goldman Sachs & Co. The worker fell off a desk on which she was standing while cleaning the inside of an office building window.

The Court found that Goldman did not hire plaintiffs employer to clean the window and that Goldman exercised no control over plaintiffs work. Thus the Supreme Court and the Appellate Division erred in denying Goldman’s motion for summary judgment.

The Court of Appeals noted that Labor Law 240(1) by its terms places a duty on contractors and owners and their agents, saying nothing about lessees. However, notes the Court, when a lessee hires a contractor and thus has the right to control the work being done, a lessee is properly considered to be an owner under the statute. The dissent argued that there were issues of fact with respect to whether Goldman had hired the contractor (the plaintiffs employer) to perform the work. Had that been the case, said the dissent, Goldman would have had the right to insist that proper safety practices were followed and therefore could be considered an owner under the statute.

The majority opinion was written by Judge Smith, with Judges Graffeo, Read and Jones concurring. Judge Pigott wrote the dissent, joined by Chief Judge Lippman and Judge Ciparick. Interestingly, the Court of Appeals decision in Ferluckaj does not refer to Labor Law 202, which by its terms applies to lessees and the cleaning of windows. The Appellate Division, First Departments decision in Ferluckaj specifically cites authority affirming that Labor Law 202 applies to the interior side or a window, not only to the exterior side. But the First Department dismissed plaintiffs Labor Law 202 claim for failing to cite any violation of a provision of the industrial board of appeals.

Labor Law 202 provides that the owner, lessee, agent and manager of every public building and every contractor involved shall provide such safe means for the cleaning of the widows and of exterior surfaces of such building as may be required and approved by the industrial board of appeals. The statute goes on to state that the owner, lessee, agent, manager or superintendent of any such public building and every contractor involved shall not require, permit, suffer or allow any window or exterior surface of such building to be cleaned unless such means are provided to enable such work to be done in a safe manner for the prevention of accidents and for the protection of the public and of persons engaged in such work in conformity with the requirements of this chapter and the rules of the industrial board of appeals.

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