Rogers v. DS Restoration: “Right-to-Control” Contractor Status and Ladder-Security Defects Preserve Labor Law §§ 240(1) and 241(6) Claims

1. Introduction

The plaintiff, Adrian Rogers, was injured when he fell from a ladder while working on gutters at a residential home. The homeowner (defendant Renee Pokszywka) hired DS Restoration & Residential Services Co. and Lenard C. Dabney (collectively, “defendants”) to perform gutter-related work. Dabney, in turn, asked the plaintiff to assist—under a verbal, cash-payment arrangement similar to prior jobs.

After a hole was discovered in the fascia/soffit area (with birds stirring in the hole), the plaintiff climbed the ladder to continue working and fell when the ladder slid as he shifted his weight.

The key appellate issues were whether defendants were “contractors” for purposes of Labor Law §§ 240(1) and 241(6), whether the plaintiff’s activity was “cleaning/routine maintenance” or a covered “repair,” whether any Labor Law § 240(1) violation was shown or negated as a matter of law, which Industrial Code predicates could sustain Labor Law § 241(6), and whether defendants could avoid liability under Labor Law § 200/common-law negligence for lack of supervisory control.

2. Summary of the Opinion

The Fourth Department largely affirmed the denial of summary judgment, holding that defendants failed to eliminate triable issues of fact on:

• Labor Law § 240(1): (i) whether defendants were “contractors” with the authority to control the work; (ii) whether the plaintiff’s gutter/fascia-related work constituted covered “repair/cleaning” versus non-covered routine maintenance; and (iii) whether the ladder was properly placed/secured and whether the plaintiff was the sole proximate cause.
• Labor Law § 241(6): defendants were not entitled to dismissal insofar as the claim was premised on 12 NYCRR 23-1.21 (b) (4) (iv) (ladder securing/holding requirements), particularly given testimony that a stabilizer boot was missing and the defense expert’s opinion was equivocal.
• Labor Law § 200 / common-law negligence: defendants did not establish lack of authority to supervise/control the work, as their own submissions raised triable issues regarding Dabney’s direction/control.

However, the court modified the order to dismiss the Labor Law § 241(6) cause of action except to the extent it was based on 12 NYCRR 23-1.21 (b) (4) (iv), because the plaintiff abandoned reliance on other Industrial Code provisions by not addressing them in the motion court or on appeal.

3. Analysis

3.1. Precedents Cited

A. Labor Law § 240(1): scope, covered activity, and elevation-risk liability

• Soto v J. Crew Inc. (21 NY3d 562, 566 [2013]) anchored the governing framework: § 240(1) imposes a nondelegable duty and “absolute liability” on owners/contractors for failure to provide necessary safety devices for elevation-related risks, and recovery requires that the plaintiff was engaged in a covered activity (including “cleaning” and “repairing”).

B. “Contractor” status: authority/right to control, not formal paperwork or actual exercise

• Stiegman v Barden & Robeson Corp. [appeal No 2] (162 AD3d 1694, 1697 [4th Dept 2018]) supplied the Fourth Department’s definition: an entity is a “contractor” under §§ 240(1)/241(6) if it had the power to enforce safety standards and choose responsible subcontractors; the “core inquiry” is authority to supervise or control the injury-producing activity.
• Prevost v Associated Materials , LLC (239 AD3d 1235, 1236-1237 [4th Dept 2025]) reinforced the same “authority to supervise/control” inquiry and its application at summary judgment.
• Barker v Union Corrugating Co. (187 AD3d 1544, 1546 [4th Dept 2020]) emphasized that contractor status turns on the right to exercise control, not whether the defendant actually did so—particularly important here given the informal, verbal arrangement.
• Rauls v DirecTV , Inc. (113 AD3d 1097, 1098-1099 [4th Dept 2014]) supported the conclusion that contractor-status disputes frequently present triable issues when evidence permits competing inferences about supervisory authority.

C. Routine maintenance vs. repair: fact-intensive classification

• Ozimek v Holiday Val. , Inc. (83 AD3d 1414, 1415 [4th Dept 2011]) reiterated that § 240(1) does not apply to routine maintenance in a non-construction/non-renovation context.
• Esposito v New York City Indus. Dev. Agency (1 NY3d 526, 528 [2003]) supplied the Court of Appeals touchstone distinguishing non-covered maintenance from covered repair.
• Dos Santos v Consolidated Edison of N.Y. , Inc. (104 AD3d 606, 607 [1st Dept 2013]) and Pieri v B & B Welch Assoc. (74 AD3d 1727, 1728 [4th Dept 2010]) underscored the case-by-case nature of the inquiry.
• Cullen v AT & T , Inc. (140 AD3d 1588, 1589 [4th Dept 2016]) (with Wolfe v Wayne-Dalton Corp. (133 AD3d 1281, 1282 [4th Dept 2015])) focused the analysis on whether the item was inoperable/malfunctioning and whether the work replaced components damaged by normal wear and tear—considerations directly mirrored in the competing engineering opinions about the fascia/soffit condition.
• Azad v 270 5th Realty Corp. (46 AD3d 728, 729-730 [2d Dept 2007], lv denied 10 NY3d 706 [2008]) was used to frame one side of the factual dispute: installing flashing to address an issue attributable to wear-and-tear may fall on the “maintenance” side depending on context.
• Verhoef v Dean (233 AD3d 1491, 1491-1492 [4th Dept 2024]) and Davidson v Ambrozewicz (12 AD3d 902, 902-903 [3d Dept 2004]) supported the opposite inference: if work was necessary to restore proper functioning of the roof/gutter system, it may be a covered “repair.”

D. Ladder placement/security; sole proximate cause; evidentiary relevance

• Calloway v American Park Place , Inc. (221 AD3d 1473, 1474 [4th Dept 2023]) (citing Petit v Board of Educ. of W. Genesee School Dist. (307 AD2d 749, 749-750 [4th Dept 2003])) established that structural soundness/non-defect is not dispositive; the critical question is whether the ladder was properly placed and secured.
• Verdugo v Fox Bldg. Group , Inc. (218 AD3d 1179, 1180 [4th Dept 2023]) and Harris v Tesmer Bldrs. , Inc. (197 AD3d 911, 912 [4th Dept 2021]) guided the “sole proximate cause” analysis, supporting denial of summary judgment where defendants did not establish that plaintiff’s conduct was the exclusive cause in the presence of potential safety-device inadequacy.

E. Labor Law § 241(6): Industrial Code predicate and summary judgment burdens

• The court sustained the § 241(6) claim only as to 12 NYCRR 23-1.21 (b) (4) (iv) and relied on Babiack v Ontario Exteriors , Inc. (106 AD3d 1448, 1449-1450 [4th Dept 2013]) and Piazza v Frank L. Ciminelli Constr. Co. , Inc. (2 AD3d 1345, 1349 [4th Dept 2003]) for the proposition that defendants must establish non-violation, inapplicability, or lack of proximate cause; an equivocal expert opinion and conflicting testimony prevent that showing.
• Fladd v Installed Bldg. Prods. , LLC (134 AD3d 1480, 1482 [4th Dept 2015]) supported the abandonment holding: Industrial Code provisions not argued in opposition or on appeal are deemed abandoned.
• Alati v Divin Bldrs. , Inc. (137 AD3d 1577, 1579 [4th Dept 2016]) and Smith v Nestle Purina Petcare Co. (105 AD3d 1384, 1386 [4th Dept 2013]) were invoked as authority for modifying orders to dismiss abandoned § 241(6) predicates while preserving any properly supported remaining predicate.

F. Labor Law § 200 / common-law negligence: “means and methods” control

• Triest v Nixon Equip. Servs. , Inc. [appeal No. 2] (224 AD3d 1364, 1366 [4th Dept 2024]) provided the controlling test in “means and methods” cases: no § 200/common-law negligence liability without authority to supervise or control the work.
• Rizzuto v L.A. Wenger Contr. Co. (91 NY2d 343, 352 [1998]) and Comes v New York State Elec. & Gas Corp. (82 NY2d 876, 877 [1993]) supplied the foundational doctrinal distinction between premises-condition cases and means-and-methods cases, and the requirement of supervisory authority for the latter.

G. Procedural discretion: word limits on motion papers

• Hart v City of Buffalo (218 AD3d 1140, 1151 [4th Dept 2023]) supported the conclusion that Supreme Court did not abuse its discretion in considering an over-limit attorney affidavit under 22 NYCRR 202.8-b (former [a]), particularly where it avoided duplicative filings across multiple motions.

3.2. Legal Reasoning

A. Why § 240(1) survived summary judgment

The court’s § 240(1) analysis proceeded in three linked steps, each fatal to defendants’ attempt to obtain dismissal as a matter of law:

1. Contractor status was fact-disputed. Even without a written contract, the record showed the owner hired defendants; Dabney recruited the plaintiff to assist; and the parties operated under a verbal cash arrangement. Under the Fourth Department’s “right-to-control” standard, those facts permitted competing inferences about whether defendants had authority over the work sufficient to qualify them as contractors.
2. Covered activity (repair vs. maintenance) was fact-disputed. Defendants’ evidence characterized the job as gutter cleaning with flashing to cover a hole attributable to ordinary wear-and-tear (supported by a defense engineer). Plaintiff’s proof characterized the work as more extensive (removing gutters, replacing fascia board, reinstalling gutters) and supported with an expert opinion that the condition suggested installation issues and rot requiring replacement of wood—more than “simple maintenance.” The court treated the distinction as context-dependent and unsuitable for resolution on defendants’ motion.
3. Violation/causation and sole proximate cause were not negated. Plaintiff testified the ladder slid when he shifted weight; that is enough to raise placement/security issues. Defendants’ focus on structural soundness did not meet the legal standard, and they likewise failed to establish that plaintiff’s conduct was the sole proximate cause.

B. Why § 241(6) was narrowed—but not dismissed entirely

The court drew a sharp line between (i) Industrial Code predicates actually pursued and supported and (ii) those effectively abandoned.

• Abandonment: Because plaintiff did not address other Industrial Code provisions in the motion court or on appeal, the court deemed them abandoned and dismissed the § 241(6) claim to that extent.
• Surviving predicate—12 NYCRR 23-1.21 (b) (4) (iv): On this ladder-specific rule, defendants did not carry their initial burden. Their own submissions included testimony that a rubber boot on a stabilizer leg was missing (a fact arguably bearing on “secur[ing] against side slip”). The defense expert’s opinion that a missing boot “would not appreciably change” safety “in a stable environment” with “reasonable safety practices” was treated as equivocal and not dispositive at summary judgment. As a result, applicability/violation/proximate cause remained triable.

C. Why § 200 and common-law negligence survived

The court classified the accident as stemming from the manner in which the work was performed (a “means and methods” scenario). Under that framework, liability turns on supervisory authority. Defendants failed to eliminate triable issues because their own proof left open whether Dabney actually directed or controlled the work that produced the injury.

D. Procedural ruling on motion papers

The Fourth Department also upheld Supreme Court’s discretionary choice to consider a single attorney affidavit exceeding the word limit in 22 NYCRR 202.8-b (former [a]), given that it responded to two summary judgment motions and supported a cross-motion while reducing duplication.

3.3. Impact

• Informal work arrangements will not defeat “contractor” exposure if control can be inferred. The decision underscores that the absence of a written contract—and even a cash, verbal arrangement—does not resolve contractor status. The decisive question remains authority/right to control the injury-producing work, a fact question commonly unsuitable for summary judgment where the record is mixed.
• Gutter/roof-edge tasks remain fertile ground for “repair vs. maintenance” disputes. Where gutter cleaning is intertwined with fascia/soffit remediation (flashing, rot, replacement wood), courts are likely to treat the classification as context-sensitive, especially when dueling experts address wear-and-tear versus malfunction/installation defects.
• § 241(6) pleading/argument discipline matters. The modification highlights a recurring appellate risk: Industrial Code predicates not defended in motion practice or on appeal may be deemed abandoned, narrowing a § 241(6) claim even when other causes survive.
• Ladder “accessory” conditions (e.g., missing stabilizer components) can carry dispositive weight. Testimony about a missing stabilizer boot, paired with an expert’s conditional/equivocal assurance, was enough to keep the ladder-security regulation in the case. Future litigants should expect close scrutiny of ladder setup and accessories—not merely ladder defectiveness.

4. Complex Concepts Simplified

• “Nondelegable duty” (Labor Law § 240[1]): a legal responsibility that an owner/contractor cannot shift to others; even if someone else was tasked with safety, the duty remains with the owner/contractor.
• “Absolute liability” (as used in § 240[1] cases): if the statute applies and a safety-device failure/absence is a proximate cause, liability can attach regardless of ordinary fault concepts; defenses often focus on inapplicability, lack of violation/causation, or “sole proximate cause.”
• “Contractor” under §§ 240(1)/241(6): not limited to a general contractor with a formal written contract; it can include an entity with the authority to control the work or enforce safety standards.
• “Routine maintenance” vs. “repair”: maintenance generally preserves an item in ordinary condition; repair generally restores function after a malfunction or addresses a condition requiring replacement of damaged components. Courts examine context, including whether something was malfunctioning and the scope of component replacement.
• “Triable issue of fact”: the evidence supports competing reasonable conclusions; a judge cannot decide it on summary judgment and must leave it for trial (or fact-finding).
• Labor Law § 241(6) and Industrial Code predicates: § 241(6) is enforced through specific, applicable Industrial Code regulations. If a plaintiff does not pursue particular regulations in motion practice/appeal, courts may treat them as abandoned.
• “Means and methods” (Labor Law § 200/common-law negligence): when the injury arises from how the work was performed (not a dangerous property condition), liability generally requires proof the defendant had authority to supervise or control the work.

5. Conclusion

Rogers v DS Restoration & Residential Servs. Co. reinforces several practical rules in New York Labor Law litigation: (1) “contractor” status depends on the right to control the work, even in informal, verbal, cash-payment arrangements; (2) the repair-versus-maintenance line is highly fact-driven, particularly for gutter/fascia/soffit work and dueling expert proof; (3) ladder safety disputes turn on placement and securing—not simply whether the ladder was “defective”; (4) Labor Law § 241(6) claims can be significantly narrowed on appeal through abandonment of Industrial Code predicates, while a properly supported ladder regulation (here, 12 NYCRR 23-1.21 (b) (4) (iv)) may still proceed; and (5) in means-and-methods cases, defendants seeking dismissal under Labor Law § 200 must conclusively negate supervisory authority—something defendants could not do on this record.