Barron v. City of New York: Inspection and Routine Maintenance Outside Labor Law §§ 240(1) and 241(6); “Storm in Progress” Bars § 200/Common-Law Negligence; Defense-Cost Indemnification Claim Survives

Introduction

In Barron v. City of New York, 2025 NY Slip Op 05212 (App Div, 2d Dept, Oct. 1, 2025), the Second Department affirmed the dismissal of a worker’s claims under Labor Law §§ 240(1), 241(6), 200, and common-law negligence arising from a fall from a retaining wall along the Gowanus Canal during an inspection. The decision clarifies the contours of New York’s construction safety statutes in three important ways:

Inspection activities that are not part of an enumerated Labor Law § 240(1) activity fall outside the statute.
Routine maintenance—even when performed at or near a construction project—does not trigger Labor Law § 241(6).
The “storm in progress” doctrine precludes § 200/common-law premises liability where a storm is ongoing at the time of the accident.

The court also preserved a third-party contractual indemnification claim for defense costs, holding that the employer/third-party defendant failed to make the required prima facie showing that the indemnity clause did not cover attorneys’ fees and litigation expenses.

Parties:

Plaintiff: Don Barron (employee of Severn Trent Environmental Services, Inc.).
Defendants: City of New York; New York City Department of Environmental Protection; Bureau of Waste Water Treatment; and Northeast Remsco Construction, Inc. (general contractor).
Third-Party Defendant: Severn Trent Environmental Services, Inc. (plaintiff’s employer), sued by Northeast Remsco for contractual indemnification.

Procedural Posture: After discovery, the Supreme Court, Kings County granted defendants’ and Severn Trent’s motions for summary judgment dismissing the Labor Law claims and common-law negligence, but denied Severn Trent’s motion to dismiss Northeast Remsco’s contractual indemnification claim. The Appellate Division affirmed in all respects relevant to the appeal and cross-appeal, awarding costs to defendants payable by plaintiff.

Summary of the Opinion

Labor Law § 240(1): Affirmed dismissal. Plaintiff’s inspection work, in context, was not within the statute’s enumerated activities (erection, demolition, repairing, altering, painting, cleaning, or pointing). The defendants and Severn Trent made a prima facie showing; plaintiff failed to raise a triable issue (citing Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Valentin v Stathakos, 228 AD3d 985; Channer v ABAX Inc., 169 AD3d 758; Cunningham v City of New York, 237 AD3d 422; Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687).
Labor Law § 241(6): Affirmed dismissal. Plaintiff’s work was routine maintenance, outside § 241(6) even though it occurred near a construction project. No triable issue was raised (citing Flores v Fort Green Homes, LLC, 227 AD3d 672; Laliashvili v Kadmia Tenth Ave. SPE, LLC, 221 AD3d 988; Byrnes v Nursing Sisters of the Sick Poor, Inc., 170 AD3d 796; Teodoro v C.W. Brown, Inc., 200 AD3d 999; Deangelis v Franklin Plaza Apts., Inc., 189 AD3d 772; Garcia-Rosales, 100 AD3d 687-688).
Labor Law § 200 and Common-Law Negligence: Affirmed dismissal. Under the storm-in-progress rule, defendants owed no duty to remedy transient storm hazards until a reasonable time after cessation. Defendants established a storm was in progress when plaintiff fell; plaintiff raised no triable fact issue (citing Lupo v Caruso, 237 AD3d 923; Pisculli v Tew, 238 AD3d 919; Saitta v Marsah Props., LLC, 211 AD3d 1062; Mejia v 69 Mamaroneck Rd. Corp., 232 AD3d 886; Cerar v Jefferson Val. Mall L.P., 225 AD3d 738; Johnson v Pawling Cent. Sch. Dist., 196 AD3d 686; Wechsler v Ave. L., LLC, 234 AD3d 895; Polis v City of New York, 230 AD3d 807; Moscoso v Overlook Towers Corp., 121 AD3d 438).
Contractual Indemnification: Affirmed denial of Severn Trent’s motion. Severn Trent failed to establish prima facie that the indemnity provision did not entitle Northeast Remsco to defense costs in the main action (citing Pena v 104 N. 6th St. Realty Corp., 157 AD3d 709; Yacovacci v Shoprite Supermarket, Inc., 24 AD3d 539).

Analysis

Precedents Cited and How They Informed the Decision

Labor Law § 240(1) – “Scaffold Law.” The Court of Appeals in Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, articulated a contextual approach: coverage depends on whether the worker’s task at the time is part of an enumerated activity or an integral part of it. The Second Department applied that framework, citing Prats and follow-on Second Department decisions (Valentin v Stathakos, 228 AD3d 985; Channer v ABAX Inc., 169 AD3d 758), to evaluate whether an “inspection” is sufficiently tied to construction/alteration/repair. Here, relying also on Cunningham v City of New York, 237 AD3d 422, and Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687, the court concluded the inspection was not within § 240(1).

Labor Law § 241(6). The court reiterated that liability under § 241(6) requires a violation of a specific, applicable Industrial Code provision (Flores v Fort Green Homes, LLC, 227 AD3d 672; Laliashvili v Kadmia Tenth Ave. SPE, LLC, 221 AD3d 988). While certain maintenance associated with construction operations may be encompassed, “routine maintenance” is not (Byrnes v Nursing Sisters of the Sick Poor, Inc., 170 AD3d 796; Garcia-Rosales, 100 AD3d 687-688; Teodoro v C.W. Brown, Inc., 200 AD3d 999). Deangelis v Franklin Plaza Apts., Inc., 189 AD3d 772, further supports distinguishing routine upkeep from construction/demolition/excavation covered by § 241(6). These precedents undergirded the finding that plaintiff’s tasks fell on the “routine maintenance” side of the line.

Labor Law § 200 and Common-Law Negligence. The court cited Lupo v Caruso, 237 AD3d 923, and Pisculli v Tew, 238 AD3d 919, to restate that § 200 codifies the common-law duty to provide a safe workplace, with liability for hazardous premises conditions hinging on creation or notice (Saitta v Marsah Props., LLC, 211 AD3d 1062; Mejia v 69 Mamaroneck Rd. Corp., 232 AD3d 886). The panel applied the “storm in progress” doctrine, as explained in Cerar v Jefferson Val. Mall L.P., 225 AD3d 738, and Johnson v Pawling Cent. Sch. Dist., 196 AD3d 686: owners are not liable for storm-related accumulations until a reasonable time after the weather event ceases. Wechsler v Ave. L., LLC, 234 AD3d 895; Polis v City of New York, 230 AD3d 807; and Moscoso v Overlook Towers Corp., 121 AD3d 438, show consistent application of this defense in summary judgment contexts.

Contractual Indemnification. Pena v 104 N. 6th St. Realty Corp., 157 AD3d 709, and Yacovacci v Shoprite Supermarket, Inc., 24 AD3d 539, confirm two key points: indemnity clauses can encompass defense costs if the language so provides, and a party seeking to dismiss a contractual indemnification claim on summary judgment must demonstrate, prima facie, that the clause does not apply. Severn Trent did not carry this burden, so the indemnification claim—at least for defense costs—survived.

Legal Reasoning

Section 240(1): The court adhered to the statute’s enumerated-activity requirement and its case-by-case, context-driven analysis for “inspection.” Plaintiff’s inspection and scheduled-maintenance role for a wastewater pumping station did not qualify as erection, demolition, repairing, altering, painting, cleaning, or pointing. Absent evidence tying his inspection to an active, integral phase of an enumerated activity, the defendants met their prima facie burden; plaintiff did not raise a triable fact to bring his task within § 240(1).
Section 241(6): The court separated “maintenance” in the abstract from “routine maintenance.” Even where a construction project is ongoing, the plaintiff’s particular task must be part of construction, demolition, or excavation work and grounded in a specific Industrial Code violation. Here, the record showed routine, scheduled maintenance and monitoring; plaintiff did not identify an applicable Code violation that proximately caused the injury. Thus, as a matter of law, § 241(6) did not apply.
Section 200/Common-Law Negligence: Framing the case as a premises condition claim, the panel applied the storm-in-progress rule. Defendants’ submissions—including plaintiff’s deposition—established that a storm was underway at the time of the fall. Because owners are not required to remedy transient storm hazards mid-storm, and because plaintiff offered no evidence of creation or notice of a distinct hazardous condition, summary judgment was proper.
Contractual Indemnification: On the third-party claim, the court emphasized the movant’s burden. To obtain summary judgment dismissing the indemnity claim, Severn Trent had to show the contract language could not cover the fees and expenses at issue. Without that prima facie showing, the claim remains viable regardless of the ultimate merits, consistent with Pena and Yacovacci.

Impact and Practical Implications

Inspection versus Construction: This decision reinforces that inspection work, even at an active public-works site, is not automatically covered by § 240(1). Plaintiffs must show the inspection was performed as an integral part of an enumerated activity at the time of the accident. Owners and contractors can rely on this case to resist efforts to expand § 240(1) beyond its statutory bounds.
Routine Maintenance and § 241(6): Worker-plaintiffs performing scheduled or routine upkeep tasks should anticipate heightened scrutiny under § 241(6), especially where they cannot connect their work to construction/demolition/excavation or identify a specific Industrial Code violation. Defendants may use Barron to argue that routine maintenance, even on or near construction sites, falls outside the statute.
Premises Liability in Inclement Weather: The opinion underscores the power of the storm-in-progress doctrine in disposing of § 200/common-law claims at summary judgment. Owners/contractors should document weather conditions and timing to establish the ongoing-storm defense; plaintiffs must marshal evidence of cessation and unreasonable delay, or of a hazardous condition independent of the storm.
Contract Drafting and Litigation Strategy: The survival of the defense-cost indemnification claim highlights the importance of precise indemnity language. Contractors and owners who intend to shift defense costs should ensure clauses expressly include attorneys’ fees and expenses. Parties moving to dismiss such claims must make a clear prima facie showing that the language does not cover the defense at issue.
Municipal and Public-Works Context: Although the project involved a municipal wastewater facility, the court applied general Labor Law principles without carving out special municipal rules. Public owners and their primes can expect standard Labor Law frameworks to govern similar disputes.

Complex Concepts Simplified

Labor Law § 240(1) (Scaffold Law): Protects workers from elevation-related risks during specific activities: erecting, demolishing, repairing, altering, painting, cleaning, or pointing of a building or structure. Coverage turns on what the worker was doing at the moment of injury and whether that task is part of an enumerated activity.
Labor Law § 241(6): Imposes a non-delegable duty on owners/contractors to comply with the Industrial Code during construction, demolition, or excavation. To recover, a plaintiff must cite a specific, applicable Industrial Code provision and show it was violated and caused the injury. Routine maintenance is not covered.
Labor Law § 200 and Common-Law Negligence: Codifies the duty to provide a safe workplace. For premises conditions, liability requires proof the owner/contractor created the hazard or had actual/constructive notice of it and failed to correct it.
Storm in Progress Rule: A property owner is generally not liable for accidents caused by snow/ice while a storm is ongoing; liability may arise only after a reasonable time has passed after the storm ends to allow for remediation.
Summary Judgment – Prima Facie / Triable Issue of Fact: The moving party must first show entitlement to judgment as a matter of law (prima facie). If that showing is made, the opponent must present evidence creating a factual dispute requiring a trial (a triable issue of fact).
Contractual Indemnification and Defense Costs: Whether one party must reimburse another for attorneys’ fees and expenses depends on the contract. On summary judgment, the party seeking to defeat an indemnity claim must demonstrate the clause cannot cover the fees sought.

Conclusion

Barron v. City of New York fortifies three recurring boundaries in New York Labor Law: inspection and routine maintenance do not, without more, trigger the Scaffold Law or § 241(6); the storm-in-progress doctrine remains a potent defense to § 200/common-law premises claims; and contractual indemnification claims for defense costs will survive unless the movant clearly shows the contract does not allow them. For litigants and drafters alike, the decision is a reminder to focus on the precise nature of the worker’s task, the timing and conditions at the accident scene, and the exact wording of indemnity provisions.

The Appellate Division’s affirmance brings clarity to the treatment of inspections and routine maintenance in the construction-law context while aligning with established precedent on storm-related liability and contractual fee shifting.