Does “cleaning” include removing leaves from a gutter? According to a recent decision, it does not – at least not within the meaning of New York Labor Law § 240(1). In that case (Hull v. Fieldpoint Community Ass’n, decided Oct. 23, 2013), the Appellate Division, Second Department, affirmed the dismissal of plaintiff’s complaint seeking recovery under Labor Law § 240(1).
In Hull, Plaintiff was injured when she fell from a roof while cleaning out leaves from the roof gutters of a residence in a condo development. At the time of her injury, plaintiff was working for defendant Fieldpoint, which had entered into a contract with the development to “clean gutters and leaders, inspect, and caulk openings three times per year.”
Labor Law § 240(1) provides in part:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. (Emphasis added.)
The court held, by citation to the Court of Appeals’ decisions in Broggy v. Rockefeller Group, Inc. and Swiderska v. New York Univ.:
Although Labor Law § 240(1) applies to commercial “cleaning” which is not part of construction, demolition, or repair[] such as commercial window washing and sandblasting, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris.
Thus, defendants established a prima facie entitlement to judgment as a matter of law, in response to which plaintiff failed to raise a triable issue of fact.