Businesses for a Better New York

Businesses for a Better New York initiates action against NYS Scaffold Act

Businesses for a Better New York (BBNY), a partnership of Western New York construction companies and insurance brokers, has commenced an action in the United States District Court for the Western District of New York against several New York State government departments — the Departments of Labor, Workers' Compensation, and Insurance — seeking to have New York Labor Law § 240(1), the so-called Scaffold Act, declared unconstitutional.

The continued enforcement of § 240(1), first enacted in 1885, has resulted in an astronomical increase in insurance premiums for construction companies, and many businesses have failed as a result. Construction companies and insurance brokers have lobbied the New York State Legislature for years to have the statute repealed. Their lobbying efforts have been unsuccessful to date.

Having grown frustrated at their lack of success through lobbying, Frank DeCarlo of Paragon Restoration and Jeff Valone of Try-Lock Roofing developed the idea of forming BBNY specifically to challenge the constitutionality and continued enforcement of § 240(1). Mr. DeCarlo and Mr. Valone are typical of BBNY members; they run Western New York family businesses that have been in operation for several generations. Ever-escalating insurance premiums have nearly forced the closure of their businesses, they have had to lay off numerous workers, and they have watched countless similar businesses fail because of this insurance crisis.

A team of attorneys from the law firm Hodgson Russ LLP, lead by partner Hugh M. Russ, III, has commenced appropriate litigation on BBNY's behalf. The complaint advances three arguments: that § 240(1) violates the equal protection clause of the U.S. Constitution, that § 240(1) violates the commerce clause of the U.S. Constitution, and that the Federal Occupational Safety & Health Act has preempted the statute.

In advancing this case, BBNY expects to introduce two sets of evidence in support of its constitutional arguments. First, New York construction businesses pay measurably higher premiums for the same insurance coverage afforded to similar businesses in other states. Second, construction workers in New York, which is the only state in the nation that has a strict liability scaffold act, are not safer than similar workers in other states, despite the supposed protection of § 240(1) (Illinois, the last state other than New York to have such a statute, repealed it in 1996). The incidence of height-related accidents is not lower in New York than in other states.

View the complaint

View the brief