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Construction Law Developments

In Ascencio v. Briarcrest at Macy Manor, LLC our New York construction accident lawyers won a major case for an landscaper who was injured in an excavation accident on an Ossining construction site in Westchester County. Both in the Westchester Supreme Court and in the Second Department, our White Plains construction accident lawyers obtained rulings that were favorable to construction workers throughout the state. To date, eighteen other cases have relied upon the decision which our construction accident lawyers won in the Second Department Appellate Division of the New York Supreme Court.

In the Asencio case, a landscaper was planting trees on a new development in Ossining, New York, in Westchester County. To plant the trees, our client and a co-worker were using an excavation machine to dig holes to plant the trees and our client was the helper who was guiding the operator of the excavator. The attorneys for the property owner and general contractor urged the Court to apply a restrictive definition of the coverage of New York’s Labor Laws and argued that because the Plaintiff’s job title was a landscaper, not a construction worker. In this case, the Court held that since the Plaintiff was performing excavation on a construction site, and because the Labor Laws specifically apply to excavation, the law covered the injured the accident. The Court recognized that landscaping work is covered under Labor Law § 241, where it is performed as part of an overall construction project. The defendants based their arguments on the introductory language of Labor Labor § 241 states it applies to construction or excavation in connection with a building and because the Plaintiff’s work was not excavating for a building, the law should not apply. Our White Plains construction accident attorneys successfully argued that the law has recognized that although the introductory language of Labor Law §241 appears to limit the applicability of the ensuing subdivisions to work done in connection with building construction, the legislative history demonstrates that its scope was not intended to be so limited, but applies to all areas where construction or excavation is being conducted and excavation is by definition under the law anytime a worker removes dirt, rock, and other material and leaves a pit, hole, or depression, they are performing excavation. Likewise, our attorneys effectively persuaded the Court to hold that job titles are not dispositive on the issue of whether a worker is entitled to Labor Law protection. In other words, Labor Law § 241 does not require that the worker be working on a structure or building as a prerequisite to coverage.

This case was also significant because in the Westchester Supreme Court, the Court recognized that several of the Industrial Code of Regulations applied to the excavation at issue and that the excavation regulations were concrete Regulations that applied to the excavation. This is significant because under Labor Law § 241(6), the Courts have taken the view that only specific violations can support a Labor Law § 241(6) violation. Since the operator got up to check the excavation and hit the control which caused the machine’s bucket to hit the Plaintiff, the Court held that the Plaintiff could establish a violation of the regulations which require that operators of power-operated material handling equipment shall remain at the controls while any load is being handled. The Court also held that this situation established a violation of the regulations which require that that the operator of an excavating machine shall not leave the controls of such machine at any time when the master clutch is engaged and the engine is operating because the operator did not activate the safety, which would have disengaged the master clutch.

The Law Offices of Michael H. Joseph