CONSTRUCTION WORKER BOARDING UP WINDOWS FOR BUILDING DEMOLITION PROTECTED BY N.Y.S. LABOR LAW IN FALL OFF LADDER

Court: Supreme Court, Appellate Division, First Department, New York

Case: Angel L. Santiago v. Rusciano & Son, Inc.

Date: Feb. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about January 21, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law Sec. 240(1) cause of action, and granted defendants' cross motion (collectively, Owners) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to deny the cross motion as to the Secs. 240(1) and 241(6) causes of action, and to grant plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff was injured when, while boarding up windows to make the subject premises uninhabitable and to protect it from vandalism in anticipation of demolition, he fell several feet from a ladder. Plaintiff's accident fell within the purview of section 240(1), since the ladder supplied to plaintiff slipped out from underneath him and did not offer proper protection (see Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152, 153, 675 N.Y.S.2d 341 [1998]; see also Velasco v. Green-Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459 [2004]). Moreover, plaintiff was "altering" the premises within the meaning of Labor Law Sec. 240(1). He was engaged in activities designed to prepare and secure the premises' windows for demolition, thereby "making a significant physical change to the configuration or composition of the building" (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998]; see Belding v. Verizon N.Y., Inc., 14 N.Y.3d 751, 752, 898 N.Y.S.2d 539, 925 N.E.2d 577 [2010]).

The Labor Law Sec. 241(6) cause of action was improperly dismissed. Plaintiff was performing work on the premises as it was being prepared for demolition.

Plaintiff's Labor Law Sec. 200 claim was properly dismissed. The accident did not arise from a dangerous condition of the premises and the Owners did not direct or control plaintiff's work (see Campuzano v. Board of Educ. of City of N.Y., 54 A.D.3d 268, 269, 863 N.Y.S.2d 184 [2008]).

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