In Kirk v Outokumpu Am. Brass, Inc., 2006 NY Slip Op 07647, the plaintiff was injured when he fell from a ladder while performing work during a routine shut down period. The work consisted of disabling the production machinery in order to inspect the machinery and replace broken or worn out parts.
The Court noted that routine maintenance is not a protected activity that falls within the ambit of Labor Law s. 240(1) and concluded that the plaintiff's work in this case fell under that exception:
In our view, plaintiff's own description of the work as a "repair" as well as his reliance on invoices which labeled the job similarly failed to create a triable issue of fact concerning the nature of the work performed. In the absence of proof that the machine or object being worked upon was inoperable or not functioning properly...Supreme Court properly concluded that the work performed by plaintiff was in the nature of routine maintenance...Moreover, even if, as plaintiff contends, there was construction and repair work taking place elsewhere on the job site at the time of plaintiff's injury, there is no indication that plaintiff's work was integrated therewith and, thus, he may not rely upon work conducted by others in order to bring him within the statute's protections...(Internal citations and quotations omitted).
Unfortunately for this particular plaintiff, that determination resulted in the Court's affirmance of the trial court's dismissal of both his Labor Law s. 240(1) and 241(6) claims. And, his Labor Law s. 200 claim had been dismissed previously.
Another one bites the dust.