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NY First Department expands scope of labor law § 240(1) to include delivery drivers

9/9/25

By: David M. Hawkins

In a recent decision, the Appellate Division, First Department, expanded the protections afforded to persons engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” under Labor Law § 240(1) to include a delivery driver whose sole function on the jobsite was delivery of tiles.

In Rodriguez v. Riverside Center Site 5 Owner LLC, et al., 235 N.Y.S.3d 55 (1st Dept. 2025), the plaintiff, Richard Rodriguez, was injured while delivering tiles to a jobsite. Mr. Rodriguez delivered the tiles for others employed by his company to install at the jobsite. Mr. Rodriguez sustained injuries when he stepped into a two-foot by three-foot hole near a temporary loading dock ramp. Mr. Rodriguez then brought claims against the owner, Riverside Center 5 Owner LLC, and the general contractor, Tishman Construction Corporation (together, the “Defendants”) for violations of Labor Law §§ 200, 240(1) and 241(6). The Defendants moved for summary judgment dismissing Mr. Rodriguez’s claims on the basis that Mr. Rodriguez was not a protected worker under the statutes. The trial court granted the Defendants’ motion and Mr. Rodriguez appealed.

On appeal, the First Department ruled that the task that a plaintiff is performing at the time of his accident is not dispositive of whether he is engaged in a protected activity under NY Labor Law § 240(1). Rather, the Court ruled that the inquiry is whether the plaintiff’s employer was contracted to perform the kind of work enumerated in the statutes and whether the plaintiff performed work “necessary and incidental to” a protected activity. Thus, the Court reasoned that because Mr. Rodriguez’s work delivering the tiles was “necessary and incidental to” the work of installing the tiles, he was within the class of protected workers even if he was not engaged in the installation of the tiles. The Appellate Division thus vacated the dismissal of Plaintiff’s Labor Law § 240(1) claims.

The Appellate Division marks another expansion of the scope of those workers covered under Labor Law § 240(1) to include workers not actively engaged in construction activities, but whose work is “necessary and incidental to” such activities. Owners and general contractors must be aware of the NY Courts’ expanding interpretation of Labor Law §§ 200, 240(1), and 241(6) claims and take necessary steps to ensure the safety of non-construction employees who come to their jobsites.

For more information, please contact David M. Hawkins at david.hawkins@fmglaw.com or your local FMG attorney.

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