NYS Law Digest No. 638 February 2013
LABOR LAW 241(6)
Condo Does Not Have Labor Law Liability for Injuries to Repairman in Individual Unit; Co-Ops Distinguished
This is not a “scaffold” law case. That category, governed by Labor Law § 240(1), is relevant whenever a worker’s injury results from the elevated nature of the work being done. It appears frequently in Court of Appeals cases and it’s a big prize if the worker can get it, because it imposes absolute liability on owners and contractors for elevation-related on-the-job injuries.
Also offering absolute liability is Labor Law § 241(6), a less frequent appearer in the Court’s cases but the major player in this one, Guryev v. Tomchinsky, 20 N.Y.3d 194, 957 N.Y.S.2d 677 (Dec. 11, 2012; 4-2 decision).
Under § 241(6), the absolute liability is imposed when a regulation prescribing specific on-the-job protections is violated. In this case the alleged violation occurred under Rule 23-1.8(a) of the Industrial Code, which requires the furnishing of eye protection when the work may endanger the eyes.
The plaintiff in this case, the employee of a company hired to renovate a unit in a condominium, was injured when a nail gun he was using “ricocheted and struck his eye”. The nature of the injury satisfied the statute and regulation; the question was whether the condominium itself was an owner under it. A divided Court of Appeals, in an opinion by Judge Read, says it was not.
In the sense used under this Labor Law statute and regulation, the owner is the one who has the individual unit involved, in this case family T, who hired the contractor. (The owner was itself exempt from the Labor Law liability because the statute excludes the owners of one-family units, which the Court says an individual condo is the equivalent of.) The Court distinguishes condo boards here from co-op corporations which, it notes, “have been held to be owners potentially liable under the Labor Law” when a worker is injured while working in one of the co-op’s apartments.
The dissent, written by Chief Judge Lippman, sees condominiums and cooperative corporations as equivalents in the sense used in these Labor Law provisions. It also points out that the condo’s board here reserved to itself “certain prerogatives of ownership” in that any individual unit’s alterations were subject to the board’s approval, which could be withheld “in the Board’s sole and absolute discretion”; that the board “reserved to itself plenary power to veto the unit owner’s choice of contractors”.
In view of the board’s retention of the right to approve renovation plans, the dissent finds “[p]articularly significant” that part of the unit/condo agreement which requires that the work “shall be performed strictly in accordance with … all applicable laws, ordinances, orders, rules, regulations and requirements”. The Court labels these reserved powers “proprietary” — aspects of ownership and hence, under the Labor Law, “non-delegable”, citing its 1991 Rocovich decision (Digest 387).
The dissent finds the majority opinion in Guryev inconsistent with the worker-protective purposes behind the Labor Law statutes. As a result of the Court’s holding, it laments, a construction laborer injured while working in a condominium unit now has no Labor Law cause of action against the unit owner by reason of the single dwelling exemption, no claim against his contractor employer by reason of the [exclusivity of the] workers’ compensation [remedy], and no statutory claim against the condominium because it is not the title owner of the unit.
The majority might rejoin that the availability of workers’ compensation, made the exclusive remedy as against the injured worker’s employer, is enough, an argument frequently put forward. But with the Labor Law provisions, the legislature clearly aimed to offer the injured worker more. As the dissent points out, however, the worker will get no more in this case.