We defend property owners, general contractors, and their carriers in New York Labor Law personal injury claims — the highest-exposure construction litigation in the country.
Every law firm website says they "handle" Labor Law defense. Most of them list the statute numbers, define absolute liability, and leave it there. This page doesn't do that. If you're a claims examiner, supervisor, or coverage attorney reading this, you already know what § 240 says. What you need to know is how we defend these files — and where the cases are actually won and lost.
Section 240(1) imposes absolute liability on owners and general contractors for gravity-related injuries. No comparative negligence. No assumption of risk. If the statute applies and the plaintiff proves a violation was a proximate cause, liability is established. Full stop.
That framework means the defense wins or loses on threshold questions — not on who was careful and who wasn't. Every file strategy starts with the same three-part analysis:
1. Does § 240 apply at all?
The statute protects workers engaged in "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." The most litigated word in that list is "altering." The Court of Appeals drew the line in Joblon v. Solow (91 N.Y.2d 457) — routine maintenance is not a protected activity. But the boundary between alteration and maintenance is fact-intensive, and the First and Second Departments don't always agree on where it falls. A worker replacing a single broken window pane may be performing maintenance; a worker replacing every window on a floor as part of a renovation is altering. Context matters — who ordered the work, was it part of a larger project, did it change the building's function or appearance? These are the facts you develop at deposition, not at trial.
The same analysis applies to "cleaning." After Soto v. J. Crew Inc. (21 N.Y.3d 562), the Court of Appeals clarified that § 240 cleaning must be a significant undertaking that is not routine household or commercial cleaning. A window washer on a scaffold is protected. A porter mopping a floor that happens to be elevated is not. The defense must pin down exactly what work the plaintiff was performing, why, and under whose direction — and do it early enough to move for summary judgment.
2. Was there an elevation-related risk requiring a safety device?
Not every injury on a construction site is a § 240 case. The statute addresses risks inherent in elevation differentials — the kind of harm that safety devices like scaffolds, ladders, hoists, and harnesses are designed to prevent. Runner v. New York Stock Exchange (13 N.Y.3d 599) expanded this to include falling objects — a worker struck by a heavy object that fell because of the absence or inadequacy of a safety device has a § 240 claim even if the worker was standing on the ground. But the object must have required securing against a gravity-related risk. A tool that slips out of a coworker's hand at the same level is a § 200 negligence case, not a § 240 absolute liability case.
The elevation differential analysis also matters in ladder cases — the bulk of § 240 litigation. A six-foot A-frame ladder that shifts and sends the worker to the ground is a textbook § 240 case. But the defense question is always: was the ladder adequate as provided, or did the worker create the condition? That leads to the most important defense in § 240 practice.
3. Sole proximate cause — the defense that actually wins.
If adequate safety devices were available, the worker knew they were available, the worker chose not to use them (or chose to use them improperly) for no good reason, and that choice was the sole proximate cause of the injury — the owner escapes liability. This is not comparative negligence. It is a complete defense. The Court of Appeals in Cahill v. Triborough Bridge & Tunnel Auth. (4 N.Y.3d 35) and the First Department in Robinson v. East Med. Ctr., LP (6 N.Y.3d 550) established the framework, and it has been the most productive defense in § 240 litigation for twenty years.
But it requires facts. Specifically, it requires the plaintiff's own deposition testimony — and that testimony must establish all four elements. If the plaintiff testifies that nobody told him a harness was available, sole proximate cause fails. If the plaintiff says the ladder "just shifted" and doesn't admit to any misuse, sole proximate cause fails. The entire defense depends on what happens in the plaintiff's deposition and the site investigation.
⚠ The Deposition That Wins or Loses § 240
The plaintiff's EBT in a § 240 case is the most important event in the file. Not discovery. Not expert exchange. The deposition. This is where the defense either locks in sole proximate cause testimony or watches it evaporate. You need counsel who knows exactly which questions to ask, in what order, and how to close escape routes. A plaintiff who testifies at deposition that he "chose not to use the harness because it was too much trouble" and that he "knew harnesses were in the gang box" has handed you a summary judgment motion. A plaintiff who simply says "I fell off the scaffold" without admitting to available alternatives has given you nothing. The difference is preparation, not luck.
A subset of sole proximate cause — but with a critical additional element. The worker must have deliberately disobeyed a specific instruction to use a safety device. Cahill treats this as the strongest version of the defense. In practice, it's rare because it requires a supervisor who can testify that they gave an explicit, contemporaneous safety instruction — and the worker ignored it. Most GCs don't document this in real time, which is why early investigation is critical. If a site super told the plaintiff to tie off and the plaintiff didn't, that testimony needs to be preserved immediately — not six months later when memories have faded or the super has moved to another job.
Owners of one- and two-family dwellings who did not direct or control the work are exempt from §§ 240(1) and 241(6) liability. This is a complete defense when it applies. But the exemption is narrower than clients think. "Direct or control" doesn't mean the homeowner hired the contractor — it means the homeowner actually supervised how the work was performed. Telling the contractor "I want the deck over there" isn't direction or control. Standing on site telling workers which boards to use and how to nail them might be. The factual question is always: did the homeowner act as a general contractor rather than a property owner hiring a professional?
The exemption also doesn't apply to properties used for commercial purposes (even partially), mixed-use buildings, or properties with three or more residential units. A homeowner who rents out a basement apartment may lose the exemption. These are facts that need to be investigated immediately upon receiving the file.
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