October 18 , 2006
By Dylan Skriloff
An upstate New York contractor has decided to take on New York’s infamous Section 240-241 of the Labor Law in Federal court.
Frank DeCarlo, owner of Paragon Restoration in Eerie County, New York is preparing a lawsuit on behalf of contractors and roofers in New York, claiming that the labor law is discriminatory. He has created an organization known as Businesses for a Better New York and a website at www.bbny.org dedicated to the cause.
Also known as The Scaffold Law, 240/241 pins absolute liability for any on-site injury on the homeowner or contractor. Defendants are not afforded the chance to defend in court even if the worker was to blame for the injury.
“The constitutional issue is that it’s discriminatory and it’s against the 14th amendment. You are not allowed due process in a 240/241 case. The law makes the contractor liable no matter what, even if there is proof otherwise. We are saying people need to defend these cases to find out who’s right and who’s wrong. That’s all we are asking for,” DeCarlo told the RBA.
New York is the only state left in the country with an absolute liability law. As a result most insurance firms in New York will not even provide liability insurance for contractors or do so at exorbitant levels. Out of state firms are often hired for construction jobs in New York because they can do the job for less.
Lou Silver of Silver Roofing. in Garnerville, said his liability insurance had gone up $100,000 in a mere three-year period. He has run into a wall of resistance in Albany whenever he has attempted to lobby on the issue. Ironically DeCarlo has reported many lobbying organizations were resistant to taking a legal approach to the 240/241 issue.
The law is similar in many respects to the equally infamous vicarious liability statute that allowed plaintiffs to sue major manufacturers when they crashed a car they had leased or rented. This had pumped up insurance rates of lease and rental cars to untenable levels.
DeCarlo said if the law was changed, contractors he’s spoken to would be willing to take on more employees and insurance companies would come back to NY. It also should drive down the overall costs of new homes and reduce the proliferation of the underground construction economy, he said.
New York state could not achieve reform on this issue due to the influence of the trial lawyer lobby and so had to defer to the United States Congress on the matter, where the law was abolished in 2005. State Assemblywoman Nancy Calhoun (R) referred to that situation as “embarrassing,” when the RBA interviewed her last year.
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