In Goodwin v. Dix Hills Jewish Ctr., 2016 NY Slip Op 07293 (App. Div. 2nd Dept. Nov. 9, 2016), a construction accident case, the court held that plaintiff established a violation of New York Labor Law § 240(1). It therefore modified a lower court order denying plaintiff’s, and granting defendant’s, motion on that issue.
Here are the facts, as summarized by the court:
According to the plaintiff’s deposition testimony, on January 30, 2007, the plaintiff, a finisher employed by nonparty Jerry Percoco, was on the fourth day of a job restoring and installing wood paneling in a temple owned by the defendant. The plaintiff’s work included installing wood paneling and molding over sheetrock and metal doors. Prior to commencing their work, the plaintiff and his coworkers removed two audio speakers from the wall. As the plaintiff and his coworkers were nearing completion of the work, a rabbi employed by the defendant asked the plaintiff to rehang the two speakers. After consulting with his coworker, Tyrone Faison, the “head finisher,” the plaintiff agreed to rehang the speakers, which required drilling holes and installing brackets in an [*2]elevated position in the room. The plaintiff retrieved and used an eight-foot A-frame ladder to hang the first speaker without incident. The plaintiff was in the process of installing the second speaker, standing on the third or fourth rung from the bottom of the ladder, when the ladder suddenly “started swinging,” causing the plaintiff to fall and sustain injuries.
Applying the law, the court concluded:
The plaintiff met his burden in moving for summary judgment, with evidence demonstrating, prima facie, that he was engaged in the altering of a building at the time of his accident such that he was entitled to the protections of Labor Law § 240(1). To successfully assert a cause of action under Labor Law § 240(1), a plaintiff must establish that he or she was injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. … [A]ltering within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure. By contrast, routine maintenance and decorative modifications do not constitute the altering of a building or structure. Here, the plaintiff was engaged in the alteration of a building, as the installation of wood paneling, which changed the dimension, thickness, and composition of the sheetrock walls and steel doors, constituted a significant physical change to the configuration or composition of the building.
Although the defendant contends that the act of rehanging a speaker does not constitute the altering of a building or structure, [t]he intent of [Labor Law § 240(1)] was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts. The plaintiff was injured while rehanging a speaker that he and his coworkers had removed to enable them to install the wood paneling and, therefore, we conclude that the plaintiff was injured while performing work that was ancillary to a covered activity, entitling him to the protections afforded by Labor Law § 240(1). To myopically focus on a job title or the plaintiff’s activities at the moment of the injury would be to ignore the totality of the circumstances in which the plaintiff and his employer were engaged in contravention of the spirit of the statute which requires a liberal construction in order to accomplish its purpose of protecting workers.
Further, the plaintiff established, prima facie, the existence of a violation of Labor Law § 240(1) that was a substantial factor in causing his injuries. A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1). There must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries. Here, the plaintiff’s proof established that the ladder from which he fell was inadequately secured to provide him with proper protection, and that the failure to secure the ladder was a proximate cause of his injuries.
In opposition, the defendant failed to raise a triable issue of fact. The defendant’s contention that the plaintiff was the sole proximate cause of the accident because he failed to keep his center of gravity within the confines of the ladder is without merit.
The court held, however, that the Supreme Court properly dismissed plaintiff’s claims for violations of Labor Law §§ 200 and 241(6), as well as common law negligence.