Was an employee of a commercial cleaning company engaged, at the time of his fall, in a type of cleaning covered by Labor Law § 240(1)?  Answer:  No.

At the outset of the opinion in Soto v. J. Crew Inc., 2013 NY Slip Op 06603, the Court stated:

Plaintiff, an employee of a commercial cleaning company hired to provide janitorial services for a retail store, [who] was injured when he fell from a four-foot-tall ladder while dusting a six-foot-high display shelf.  He brought a Labor Law § 240(1) action against J. Crew, the retail store, and The Mercer I LLC, the building owner.  Both lower courts held that defendants were entitled to summary judgment because the activity plaintiff was engaged in at the time of his fall was not the type of “cleaning” covered by Labor Law § 240(1).  Id. at 1-2.

According to the Court of Appeals:

Defendant J. Crew hired Whalen Cleaning Services to provide custodial services at a retail store located in lower Manhattan.  Whalen assigned plaintiff Jose Soto responsibility for daily maintenance of the store.  Each day, Soto would report for work several hours before the establishment opened to ready the premises for business, vacuuming, mopping, cleaning bathrooms, emptying garbage and the like.  After the store opened, and for the remainder of his shift, he did spot cleaning, tidying shelves, dusting, wiping down the entrance door, sweeping-up debris and scraping gum from the floor, as necessary.  Id.

In particular:

On the day of the incident, a J. Crew employee noticed that a six-foot-high wooden shelf used to display clothing was dusty and she asked Soto to clean it.  Equipped with a “high duster” (a Swiffer duster with a long handle), Soto – who is five feet, ten inches tall – positioned a four-foot-high A-frame ladder on the floor in front of the shelf.  It is undisputed that the ladder was in proper working order and that Soto locked it in the open position prior to climbing the steps.  As he was dusting the shelf, however, both Soto and the ladder fell over, allegedly causing Soto to injure his back, knee and elbow.  Id.

Soto sued J. Crew and the building owner under Labor Law § 240(1).  The Court of Appeals summarized that:

Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 [1991]).  To recover, the plaintiff must have been engaged in a covered activity – “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240[1]; see Panek v. County of Albany, 99 NY2d 452, 457 [2003]) – and must have suffered an injury as “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential[.]” Id. at 3.

Drawing a distinction between different types of “cleaning,” the Court of Appeals stated that:

Although commercial window washing constitutes “cleaning” within the ambit of Labor Law § 240(1) for the reasons explained above, we have nonetheless clarified that “routine, household window washing” does not (see Brown v. Christopher St. Owners Corp., 87 NY2d 938, 939 [1996]; Connors v. Boorstein, 4 NY2d 172 [1958]).  Routine maintenance of that type has been deemed excluded from the statute in recognition of the fact that such a task generally does not involve the type of heightened elevation-related risks that justify extension of the provision’s special protection.  Id. at 4.

Elucidating the distinction between commercial window washing and other cleaning, the Court of Appeals summarized that:

Outside the sphere of commercial window washing (which we have already determined to be covered), an activity cannot be characterized as “cleaning” under the statute, if the task: 1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; 2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; 3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and 4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project.  Whether the activity is “cleaning” is an issue for the court to decide after reviewing all of the factors.  The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other. Id. at 5.

And, applying the law and foregoing distinction to the facts, the Court of Appeals concluded that “the activity undertaken by Soto was not within the meaning of Labor Law §240(1) because:

The dusting of a six-foot-high display shelf is the type of routine maintenance that occurs frequently in a retail store.  It did not require specialized equipment or knowledge and could be accomplished by a single custodial worker using tools commonly found in a domestic setting.  Further, the elevation-related risks involved were comparable to those encountered by homeowners during ordinary household cleaning and the task was unrelated to a construction, renovation, painting, alteration or repair project.  Id.