In Foiles v Eastman, Cooke & Assoc., LLC, 2022 NY Slip Op 30342[U] (Sup Ct, NY County 2022), the plaintiff was director of security at the Hospital for Special Surgery, which was under construction. Plaintiff claimed he was caused to trip and fall due to a dangerous condition at the worksite and filed a complaint for common-law negligence as well as Labor Law §§ 200 and 241 (6). Defendants moved to dismiss under CPLR 3211.

Plaintiff claimed that as an employee of the property owner where construction was being performed, he is entitled to the protections afforded under the Labor Law since he was lawfully at the construction site. Defendants argued that no discovery is needed since the complaint fails to allege that plaintiff was employed or authorized to work on the construction site. The plaintiff was only performing a routine inspection at the time and was not engaged in any type of construction work or activity.

The court agreed with the defendants. To recover under the Labor Law, a plaintiff must show he or she was employed to work on the construction site. The statutory protection does not extend to employees performing routine maintenance tasks at a building that just happens to be undergoing construction or renovation, such as a night watchman or security guard. Although an individual need not actually be engaged in physical labor to be entitled to coverage under the Labor Law, plaintiff failed to allege or show that he performed work integral or necessary to completing the construction project.[1]

For these reasons, the court found that plaintiff was not entitled to the protections of the Labor Law and defendant’s motions to dismiss plaintiff’s Labor Law §§ 200 and 241(6) claims was granted.

[1] Foiles v Eastman, Cooke & Assoc., LLC, 2022 NY Slip Op 30342[U], *5-6 (Sup Ct, NY County 2022).


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