Order, Supreme Court, New York County (Debra A. James, J.), entered November 26, 2008, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action and denied defendants' cross motion for summary judgment dismissing that cause of action, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Catterson, J.P., McGuire, Moskowitz, DeGrasse, Freedman, JJ.
113279/04, 590137/06 & 590265/06
Plaintiff, an installer, was injured in a fall from an A- frame ladder on May 25, 2004 in a building owned by defendant Verizon, New York, Inc. Verizon had engaged defendant Tishman Interiors Corporation as the construction manager for a capital improvement that included a site hardening and security project at the building. According to the deposition of Tishman's assistant project manager, the project entailed the reconstruction of the building's main entrance as well as the installation of a security desk, cameras and card-read systems. Plaintiff's employer, Shatter Guard, was engaged as a subcontractor for the installation of a shatterproofing substance called bomb blast film on windows in the front and rear lobbies of the building. Although the bomb blast film was installed in April 2004, plaintiff had to do a reinstallation on the day of the accident in order to address complaints made by the architect.
Plaintiff made a prima facie showing of proximate cause under section 240(1) with his unrefuted testimony that the ladder collapsed beneath him causing him to fall (see Panek v County of Albany, 99 NY2d 452, 458 )*fn1. Defendants, however, argue that plaintiff's work on the day of the accident was done purely to correct a cosmetic defect and did not, as plaintiff claims, constitute "altering," an activity enumerated under the statute. " [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" (Jablon v Solow, 91 NY2d 457, 465 ). Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878 ), which involved an assistant mechanic who fell from an ladder while readying air conditioning units for inspection, is instructive. In discussing the applicability of section 240(1) to the worker's activity, the Court of Appeals observed: "Although at the instant of the injury [plaintiff] was inspecting and putting the finishing touches on what he had altered, he had done heavier alteration work on other days at the same job site on the same project. He was a member of a team that undertook an enumerated activity under a construction contract, and it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts" (id. at 882).
As noted above, the site hardening and security project was part of an overall capital improvement that included plaintiff's work as evidenced by the fact that his company, engaged as a subcontractor, was a member of the team involved in the alteration. Accordingly, we reject the dissent's and defendants' attempt to isolate the specific task plaintiff was engaged in at the time of the injury. Defendants' characterization of plaintiff's work as merely cosmetic is dispelled by the unchallenged evidence that bomb blast film changes the property of glass. Accordingly, plaintiff's employer was engaged to carry out a specific part of the alteration. It is also significant that plaintiff was reinstalling the bomb blast film at the behest of an architect, a professional who would generally be a key player in an alteration project. Construing section 240(1) liberally so as to accomplish its purpose of protecting workers (see Greenfield v Macherich Queens Ltd. Partnership, 3 AD3d 429, 430 , citing Martinez v City of New York, 93 NY2d 322, 326 ), we find that plaintiff's reinstallation of the bomb blast film at the time of the accident was a protected activity under section 240(1). Martinez, which the dissent also cites, is readily distinguishable. The plaintiff in that case was an environmental inspector not engaged in or employed by a company engaged in an activity enumerated in section 240(1).
Defendants also fail to raise a triable issue of fact as to whether the ladder was "good enough to afford proper protection" and that plaintiff's own negligence was the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servs. Of N.Y. City, 1 NY3d 280, 289, n. 8 ).
We have considered defendants' remaining arguments and find them to be without merit. All concur except Catterson, J.P. and McGuire, J. who dissent in a memorandum by McGuire, J. as follows:
Defendant Verizon New York, Inc. owns a building in midtown Manhattan and decided to have work performed on it to enhance safety and security. Verizon retained defendant Northern Bay Contractors as the general contractor of the project and defendant Tishman Interiors Corporation as the construction manager. The project, which began in the summer of 2003, included the reconstruction of the building's entranceway, and the installation in the lobby of a new security desk, turnstiles and access card readers, as well as security cameras throughout the building. Additionally, a polyester adhesive film was to be applied to approximately six windows in the building's two lobbies. This film was designed to absorb significant amounts of force (such as from an explosion), so as to both decrease the likelihood of glass shattering from exposure to force and, in the event that the glass should break, to help hold the broken glass within the window frame, thereby preventing shards of glass from injuring people or damaging property. The construction manager retained Shatter Guard, which was plaintiff's employer, to apply the film to the windows.
In April 2004, plaintiff applied the film to the interior portions of the windows in both the north and south lobbies. In each lobby plaintiff applied the film to three windows; each window was several feet from the ground, and the middle window, which was above the doors to the building, was wider than the windows adjacent to it. To apply the film, plaintiff, with the assistance of a co-worker, cleaned the window, cut the film to fit the window, pulled the liner off of the film, wet the back of the film, slid the film into place on the glass and used a squeegee to remove excess water from the film. Plaintiff and his co-worker stood on a scaffold to slide the film into place and remove the excess water from the film. In addition to the scaffold, plaintiff used a box cutter to cut the film, a spray bottle containing soap and water to clean the windows, and a squeegee. Plaintiff and his co-worker completed their task -- applying the film to each of the six windows -- in one day.
Although the application of the film to the windows was completed in April 2004, the project's architect requested that the film be adjusted on the center window in each lobby. According to plaintiff, "[t]he architect ... didn't like that the seams [of the film] ran through the backs of the numbers of the [address of the building, which was printed on the center windows]." On May 25, 2004, accordingly, plaintiff and a co-worker returned to the building to adjust portions of the film. To make the adjustments, plaintiff and the co-worker needed to cut and peel away a portion of the film near the numbers of the address and reapply the film in a manner that would not obscure the numbers. The only tools they needed to perform this work were a box cutter, a squeegee and ladders (or a scaffold) to reach the area on the windows where the numbers of the address were printed.
Plaintiff and his co-worker adjusted the film on the center window of the north lobby without incident. In performing that adjustment, plaintiff and his co-worker used a pair of ladders, one that belonged to plaintiff and one that was obtained from the job site. The workers then went to the south lobby to adjust the film on the center window of that lobby. After peeling away a portion of the film near the numbers of the address and cutting a piece of film to replace it, plaintiff, standing on a ladder obtained from the job site, and his co-worker, standing on the ladder belonging to plaintiff, attempted to test fit the new piece of film they were going to apply to the window. As they were ...