Weekes v. Tishman Technologies Corp.: Construction-Manager Liability and Ancillary Scaffold Removal under New York Labor Law §240(1)

I. Introduction

In Weekes v. Tishman Technologies Corporation, 238 A.D.3d 948 (2d Dep’t 2025), the Appellate Division, Second Department, clarified two recurring issues in New York construction-accident litigation:

When a construction manager—as opposed to an owner or traditional general contractor—may be deemed a statutory agent subject to absolute liability under Labor Law §§240(1) and 241(6); and
Whether a worker helping to dismantle another trade’s Baker scaffold is engaged in a covered activity even though the scaffold belonged to someone else.

The plaintiff, Samuel Weekes, a sheet-metal worker employed by AABCO Sheet Metal Co., claimed head injuries after a piece of another trade’s Baker scaffold swung or fell during the disassembly process. The central defendants were:

Tishman Technologies Corporation (“Tishman”) – construction manager for the public-works project owned by the NYC Department of Design & Construction (DDC);
Several trade defendants and scaffold contractors (Eagle Scaffolding, Atlantic Hoisting, et al.).

On cross-motions for summary judgment, Supreme Court (Kings County) held for the defendants, dismissing the Labor Law §240(1) and §241(6)–Industrial Code §23-5.1(h) claims against Tishman and denying plaintiff’s affirmative motion. The Appellate Division modified, reinstating those causes of action against Tishman and declaring triable issues of fact.

II. Summary of the Judgment

Construction-manager status: The court held that Tishman’s contractually delegated authority over safety, coupled with on-site evidence of actual safety supervision, rendered it a statutory agent of the owner (DDC) for Labor Law purposes.
An ancillary activity is still covered: Dismantling a scaffold, even one owned by another trade, is ancillary or preparatory to covered construction and thus within §240(1)’s protection.
No party entitled to summary judgment: Conflicting testimony (height differential of 6 inches vs. 6 feet; “swinging” vs. “springing” mechanism) produced triable issues regarding whether a gravity-related hazard existed and whether any scaffold defect was a proximate cause.
Industrial Code §23-5.1(h): Similar fact issues prevented dismissal of the §241(6) claim predicated on the regulation requiring designated supervision of scaffold erection/removal.
Renewal motion: Plaintiff’s attempt to re-argue based on a late affidavit was properly denied for lack of a reasonable justification.

III. Analysis

A. Precedents Cited and Their Influence

Lamar v. Hill International, Inc., 153 A.D.3d 685 (2017) and Walls v. Turner Construction Co., 4 N.Y.3d 861 (2005) – Stand for the proposition that a construction manager is ordinarily outside the ambit of §§240/241 unless it has authority to supervise or control the injury-producing work.
Myles v. Claxton, 115 A.D.3d 654 (2014) – Emphasizes that titles are irrelevant; functional authority is dispositive. Weekes leans heavily on this functional approach.
Barrios v. City of New York, 75 A.D.3d 517 (2010) and Tomyuk v. Junefield Assoc., 57 A.D.3d 518 (2008) – Both found construction managers liable where contractual safety authority existed. Weekes applies the same logic but with even broader language referencing “means and methods of construction” within the manager’s discretion.
Gallagher v. Resnick, 107 A.D.3d 942 (2013) & Mananghaya v. Bronx-Lebanon Hosp. Ctr., 165 A.D.3d 117 (2018) – Hold that ancillary or preparatory work triggers §240(1). Weekes extends the principle to the removal of another subcontractor’s scaffold.
Elevation-hazard line of cases (Lemus, Hensel, Carlton) – Provide the “physically significant height differential” test. Weekes marshals these cases to show that factual disputes remain over whether six inches is “significant” under the circumstances.
Renewal standards (Ok Sun Chong v. Scheelje, 218 A.D.3d 691 (2023)) – Clarify that renewal is not a do-over absent new facts and reasonable justification. Weekes exemplifies a strict application, rejecting plaintiff’s late affidavit.

B. The Court’s Legal Reasoning

Statutory-Agent Analysis
- Contract gave Tishman power to “enforce subcontractors’ compliance with safety requirements” and select “means and methods.”
- Deposition evidence: Tishman’s safety manager was onsite full time; trade foreperson testified Tishman corrected unsafe practices.
- Result: Tishman possessed the ability to prevent or correct the unsafe condition, satisfying the agency test.
Covered Activity Determination
- Although plaintiff was helping another trade, the scaffold had to be removed to advance plaintiff’s own HVAC dismantling. Thus the activity was both permitted and integral.
- Court cites the liberally construed purpose of §240(1) (Crutch; Wheat).
Elevation-Related Hazard Inquiry
- Key factual uncertainties: actual height of the scaffold component (6 in. vs. 6 ft.); whether force of gravity acted on a falling object or whether the piece “sprung” horizontally.
- Under the “single decisive question” test (Lemus), these inconsistencies preclude summary judgment for either side.
Industrial Code §23-5.1(h)
- Regulation requires that “every scaffold shall be erected and removed under the supervision of a designated person.”
- Plaintiff did not conclusively prove lack of supervision, but defendants could not disprove proximate causation either. Triable issues remain.
Renewal Standards Applied
- Plaintiff offered an affidavit from Keith Gray only on renewal; no explanation for earlier omission beyond attorney oversight.
- Court deemed this inadequate under CPLR 2221(e); renewal justifiably denied.

C. Potential Impact of the Decision

Construction Managers: Weekes underscores that any manager with contractual and practical safety authority should expect potential strict liability exposure. Owners and insurers will likely scrutinize management contracts and on-site safety roles more carefully.
Litigation Strategy: Plaintiffs can withstand dispositive motions by pointing to broad safety language in CM contracts and anecdotal site-control evidence. Defendants must now marshal counter-proof of lack of control earlier in discovery.
Scope of Covered Work: The opinion reinforces that ancillary work, even for another trade’s equipment, generally falls within §240(1). Expect broader plaintiff arguments for coverage during site “cleanup” or preparatory tasks.
Elevation Thresholds: By refusing to deem six inches automatically de minimis, the court leaves juries to evaluate “physically significant” height on a case-specific basis, potentially increasing fact questions and settlement value.
Renewal Motions: Reaffirms Second Department’s strict approach; practitioners should compile all supportive affidavits before initial motion practice.

IV. Complex Concepts Simplified

Labor Law §240(1) (“Scaffold Law”): Imposes absolute liability on owners, contractors, or their agents for gravity-related accidents if proper safety devices are not provided.
Labor Law §241(6): Imposes vicarious liability for violations of specific Industrial Code regulations that cause injury.
Statutory Agent: A party that, although not an owner or general contractor, has the authority to supervise or control the injury-producing work. That authority alone—regardless of whether exercised—creates liability exposure.
Baker Scaffold: A small, rolling, adjustable scaffold (often 6 ft. high) used for interior ceiling work.
Physically Significant Height Differential: A meaningful distance in elevation such that gravity’s force directly contributed to the accident. The term is purposely flexible and fact-driven.
Summary Judgment: A procedural device to decide a claim without trial when no material facts are disputed. If factual conflicts exist, the motion must be denied.
Motion for Leave to Renew (CPLR 2221): Asks the court to reconsider a prior order based on new facts not previously available, plus a reasonable excuse for the earlier omission.

V. Conclusion

Weekes v. Tishman Technologies Corp. solidifies two doctrinal strands in New York labor-law jurisprudence. First, construction managers wielding broad contractual safety authority cannot evade the status of “agent” for §§240 and 241 liability. Second, tasks ancillary to construction—here, removing a co-worker’s scaffold—remain protected activities. Although the court stopped short of granting liability to the plaintiff, its unwillingness to dismiss the claims against Tishman signals heightened scrutiny of construction-manager roles and a readiness to let juries resolve nuanced height-differential disputes. Practitioners should heed the decision’s twin messages: draft contracts and supervise worksites with §240(1) in mind, and build fact records early to avoid costly, fact-laden trials.