Cleaning – A Protected Activity Under the Labor Law

By Marc H. Pillinger.

Healy v. EST Downtown LLC
Decided on April 28, 2022, by the Court of Appeals
2022 WL 1242800

This interesting case arises from an accident while the plaintiff was working to remove a bird’s nest from a commercial building’s gutter. He was standing on a step ladder approximately five feet above the ground to remove the material.

The Appellate Division, Fourth Department, decided on February 5, 2021, that the plaintiff was engaged in a protected activity under Labor Law Section 240(1), i.e., cleaning, when he fell.

The Court of Appeals unanimously, in reversing the Appellate Division, held that the plaintiff’s work was “routine” within the meaning of the statute applying a four-factor analysis found in Soto v. J. Crew Inc., 21 N.Y.3d 562, 568, 976 N.Y.S.2d 421 (2013). The first factor the Court considered was whether the work was “routine in the sense that is the type of work that occurs daily, weekly or another relative-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises.” Here, the Court found that the plaintiff’s work was “routine” within the meaning of the first factor, and therefore the plaintiff was not engaged in a protected activity.

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Marc H. Pillinger, Executive Partner
mpillinger@pmtlawfirm.com

Jeffrey T. Miller, Executive Partner
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