By TRACEY DRURY
Business First

New York contractors will finally have their day in appeals court this month to try to reverse what they call an "antiquated" labor law first enacted in 1885.

Labor Law 240, known widely as the scaffold law, was enacted to protect construction workers building the nation's first skyscrapers. The law applies to falls from scaffolds and ladders and other injuries caused by items falling onto employees.

New York remains the only state that has not repealed the law. The fight to change that is being led by Businesses for a Better New York, a statewide business coalition based in Buffalo. A panel of three judges on the U.S. Court of Appeals, 2nd Circuit, began hearing oral arguments May 21 in New York City.

Attorney Hugh Russ III, a partner at Hodgson Russ LLP, says the law leaves contractors with complete liability for any accidents if a worker falls from a height while on the job, regardless of whether the worker contributed to the accident by drinking alcohol or using drugs during a break or there were any other mitigating circumstances.

"The owner and general contractor are liable automatically. They can't produce any evidence of what may have happened or show whose fault it may be or whether something else caused the accident," Russ said.

Paul Brown, president of the Buffalo Building & Construction Trades Council, says just because other states have repealed similar laws, New York shouldn't compromise its own high safety standards.

"A lot of states also don't have (workers') comp," he says. "It doesn't mean that's right."

Brown says union trade workers are required to complete safety courses and know what to do to keep themselves safe. They're also drug-tested and don't drink on the job.

"If someone falls, they're done with their career - 90 percent of the time, they can't work anymore," he says. "To deregulate it is ridiculous."

Business owners disagree. The coalition hopes to either have the statute repealed, or at the least to see it modified to allow defendants sued under the law to introduce evidence of comparative negligence on the part of the victim or others. A bill has been introduced in the state Assembly that could achieve that secondary goal, he says.

Frank DeCarlo, co-founder of the coalition and president of Paragon Restoration Group in Depew, says the law violates the 14th Amendment, which guarantees due process of law.

"One of the key factors is, if you are dragged into court, you are guilty. The law presumes guilt, and you do not have any way of defending yourself in court," he says. "You can't defend yourself."

The organization intends to show that the law has led to higher insurance rates, which puts New York companies at a competitive disadvantage when bidding on jobs with out-of-state firms. That's especially true for small firms, it says.

"Their beef is that the enforcement of Labor Law 240 directly results in hugely increased insurance premiums," Russ says.

The case was previously dismissed by U.S. Magistrate Judge Hon. Jeremiah McCarthy and U.S. District Court Judge Hon. Richard Arcara. The appeal process has taken about 18 months. Russ will contest the justification that the law keeps New York workers safer, and argue that it actually inflates insurance rates in the state.

"We've developed statistical evidence based on OSHA that, in fact, New York workers are not safer: It's the fourth most dangerous state of the 50," he says.

Russ hopes for a decision this summer.

Scaffold Law: At a glance

Enacted: New York Labor Law section 240 was created in 1885.

Who it protects: Workers injured during falls on the job, including from scaffolding and ladders. Property owners and contractors are automatically held 100 percent liable in all cases.

Lawsuit seeks: Either a repeal or modification that allows companies to introduce evidence of potential wrongdoing or liability on the part of the victim or other mitigating circumstances.