Practice point: The defendants did not establish their prima facie entitlement
to judgment as a matter of law, as they did not demonstrate that the
plaintiff, who was injured while power washing buildings in preparation
for painting them, was not engaged in a specifically enumerated activity
under 12 NYCRR 23-1.4(b)(13). Painting is an activity enumerated under
that provision, and the power washing performed here was
in preparation for, and a contractual part of, the painting work.
Accordingly, the power washing was not "routine maintenance"
which is excluded from the ambit of Labor Law § 241(6), but, rather, was surface preparation, which was an integral part of the painting process
contemplated by the parties.
Student note: Labor Law § 241(6) imposes a nondelegable duty of reasonable care
upon owners and contractors to provide reasonable and adequate
protection and safety to persons employed in, or lawfully frequenting
all areas in which construction, excavation or demolition work is being
performed. Section 23-1.4(b)(13) of the Industrial
Code defines construction work as including all work "performed in the
construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures."
Case: Dixson v. Waterways at Bay Pointe Homeowners Assn., Inc., NY Slip Op 08591 (2d Dept. 2013).
Here is the decision.
Tomorrow''s issue: A general contractor's liability.
