You scratch my back and I will sue you
Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)
(Barter arrangement sufficient quid pro quo to constitute a compensable hiring to invoke Labor Law 241(6) protections to carpenter).
Plaintiff, a 40 year-old journeyman union carpenter injured his eye when a nail ricocheted off of a pipe he was securing with a “brad gun.” Plaintiff owned the nail gun for eight years and it bears a warning that protective eyewear is to be worn. Plaintiff did not wear eyewear and claimed that eyewear was not provided by Defendants.
Plaintiff's project was a barter arrangement with a homeowner and the homeowner’s architectural firm, Defendants, Saulo and Saulo, P.C., respectively. Saulo is a distant cousin of Plaintiff and a licensed architect. Saulo agreed to draw plans for Plaintiff’s home renovation project in exchange for Plaintiff's help completing an outdoor deck for Saulo.
In granting Saulo's SJ motion, Justice Partnow (Kings County) held that the work was not a compensable hiring and that Plaintiff was not an “employee” as defined within Labor Law section 2. Plaintiff appealed to the Second Department seeking.
The 2d Dep't held that the barter arrangement was a sufficient quid pro quo to constitute a compensable hiring. The Court, however, did not reach the issue of causation (i.e., whether Plaintiff was the sole proximate cause of his injury in failing to wear protective eyewear). See, McCormack v. Universal Carpet & Upholstery Cleaners, 29 A.D.3d 542, 815 N.Y.S.2d 635, 2006 N.Y. Slip Op. 03555 (2 Dept. 2006).
Thank you to Robert Conti of Bee Ready Fishbein Hatter & Donovan for bring this decision to my attention.