I fell from a scaffold while cleaning an air compressor mounted on the roof of a building. What are my options for getting my bills covered while I recover from my injuries?
If you were injured in a height-related accident while performing commercial cleaning work in New York, understanding how Labor Law protects cleaners under § 240(1) and § 202 is critical to securing financial recovery. Depending on the nature of the task, the equipment involved, and the location of the accident, you may be entitled to absolute liability protection against the building owner and general contractor.
1. Workers’ Compensation Claim vs. Supreme Court Personal Injury Claim
Following an on-the-job injury in New York, an injured worker typically has two distinct avenues of legal recourse:
Workers’ Compensation Benefits
Under the New York Workers’ Compensation Law, an injured employee is entitled to no-fault medical coverage and indemnity benefits for a portion of lost wages. You have 30 days from the date of the accident to give written notice to your employer. While Workers’ Compensation provides vital immediate relief without requiring proof of negligence, it does not provide compensation for non-economic damages, such as pain and suffering, mental anguish, or loss of quality of life.
Personal Injury Lawsuit in State Supreme Court
To recover full economic damages (uncapped lost earnings and future earning capacity) and non-economic damages (pain and suffering), an injured worker must file a personal injury action in New York State Supreme Court. Because Workers’ Compensation statutory immunity shields your direct employer from standard personal injury lawsuits, third-party claims are typically directed against the property owner, general contractor, or leaseholder under New York Labor Law.
2. When Does Commercial Cleaning Fall Under Labor Law § 240(1)? How Labor Law Protects Cleaners
New York Labor Law § 240(1)—frequently referred to as the “Scaffold Law”—imposes a non-delegable duty and strict liability upon building owners, general contractors, and their agents to furnish or erect proper safety devices (including scaffolding, ladders, hoists, stays, slings, hangers, blocks, pulleys, braces, irons, and ropes) constructed, placed, and operated so as to afford proper protection to workers exposed to elevation-related hazards.
While § 240(1) is most commonly associated with construction sites, the plain text of the statute explicitly demonstrates how Labor Law protects cleaners engaged in:
“the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.”
The New York Court of Appeals has repeatedly affirmed that covered “cleaning” under § 240(1) is not limited to tasks performed in connection with construction, demolition, or repair work (see Soto v. J. Crew Inc., 21 NY3d 562 [2013]; Dahar v. Holland Ladder & Mfg. Co., 18 NY3d 521 [2012]).
The Soto v. J. Crew Four-Factor Test for Covered Cleaning
To distinguish protected commercial cleaning activities from unprotected “routine domestic or maintenance cleaning,” the Court of Appeals in Soto v. J. Crew Inc. established a four-factor framework. Courts evaluate:
- Frequency of the Task: Whether the activity is routine in the sense that it recurs on a daily, weekly, or frequent basis as part of ordinary maintenance and care of the premises.
- Specialized Equipment or Expertise: Whether the task requires specialized machinery, elevated access devices, or specialized training beyond standard domestic cleaning.
- Gravity-Related Elevation Risk: Whether the activity involves height risks comparable to those encountered in domestic cleaning or whether it exposes the worker to significant elevation differentials.
- Context of the Project: Whether the cleaning is performed in conjunction with or ancillary to ongoing construction, renovation, painting, alteration, or repair work.
Application to Rooftop Equipment and HVAC Cleaning
Applying the Soto factors, cleaning an air compressor mounted on a building roof while working from a scaffold represents a clear instance where Labor Law protects cleaners under § 240(1).
- Infrequent & Specialized: Servicing or cleaning elevated heavy machinery mounted on a rooftop is not standard daily janitorial tidying.
- Elevation Risk & Specialized Equipment: Operating from a scaffold to access rooftop mechanical units entails a significant gravity-related hazard and requires commercial-grade access equipment.
This positioning aligns directly with First Department precedent in Mazzarisi v. New York Society for Relief of Ruptured & , Maintaining Hospital for Special Surgery, 205 AD3d 424 (1st Dept 2022), where power-washing commercial HVAC chillers was held to constitute covered “cleaning” under Labor Law § 240(1) because it did not reoccur on a regular schedule as part of ordinary maintenance, involved elevated risks beyond domestic cleaning, and required specialized equipment.
3. Commercial Window Cleaning and Labor Law § 202
Window washers and exterior building cleaners enjoy dual statutory protections under New York law:
Labor Law § 202
Labor Law § 202 (“Protection of the public and of persons engaged at window cleaning and cleaning of exterior surfaces of buildings”) imposes a specific statutory duty upon building owners, lessees, agents, managers, and contractors to provide authorized safety devices and structural anchors for window cleaning operations on public and commercial buildings.
Dual Claims Under § 240(1) and § 202
In Bauer v. Female Academy of Sacred Heart, 97 NY2d 445 (2002), the Court of Appeals held that an injured window cleaner may bring claims simultaneously under both Labor Law § 202 and Labor Law § 240(1). However, key legal distinctions exist between how Labor Law protects cleaners under each statute:
| Feature | Labor Law § 240(1) | Labor Law § 202 |
|---|---|---|
| Covered Activities | Erection, demolition, repair, alter, paint, clean, point. | Cleaning interior/exterior windows & exterior building surfaces. |
| Target Defendants | Property owners, general contractors, and their agents. | Owners, lessees, agents, managers, superintendents, contractors. |
| Liability Standard | Absolute / Strict Liability (owner/contractor liable regardless of fault). | Statutory negligence standard. |
| Comparative Fault Defense | Inapplicable (Plaintiff’s comparative negligence is NOT a defense). | Applicable (Plaintiff’s comparative fault reduces financial recovery). |
| Statutory Exemptions | Owners of 1- and 2-family dwellings who do not direct/control work. | Multiple dwellings ≤ 6 stories and non-public residential buildings. |
4. Absolute Liability and Legal Defenses Under § 240(1)
The key distinction of a Labor Law § 240(1) claim is absolute liability. Once a worker demonstrates that the owner or general contractor failed to provide adequate safety equipment—or provided equipment that failed to afford proper protection against a fall—and that this statutory breach was a proximate cause of the injury, liability is established.
Comparative Fault is No Defense
Under § 240(1), an owner or contractor cannot reduce damages by asserting that the worker was careless or contributed to the fall through ordinary negligence.
The “Sole Proximate Cause” and “Recalcitrant Worker” Defenses
To defeat summary judgment under Labor Law § 240(1), a defendant must prove that the plaintiff’s own conduct was the sole proximate cause of the accident. To establish a “recalcitrant worker” defense, the defendant must prove that:
- Adequate and appropriate safety devices were available on the job site.
- The worker was instructed to use the safety devices or knew they were available and expected to be used.
- The worker deliberately and unreasonably chose not to use the available safety devices.
- The worker was injured solely as a result of that choice.
Where a scaffold, ladder, or hoist moves, collapses, or fails to afford adequate fall protection, the sole proximate cause defense does not apply as a matter of law. The violation of the statute is enough to prove liability against the general contractor or owner.
By James Santner, Esq.
Minchew & Santner, LLP represents injured workers across New York in Labor Law, scaffolding accident, and complex personal injury litigation. Consultations are free, and we handle cases on a contingency fee basis—there is no fee unless we win. Contact our office for your questions.