and Sacks, L.L.P., New York (Scott N. Singer of counsel), for
Office of James J. Toomey, New York (Evy Kazansky of
counsel), for Steinway, Inc. and 111 West 57th Street
Associates L.P., respondents.
Ahmuty, Citrin & Spratt LLP, Lake Success (Jonathan P.
Shaub of counsel), for Cheung Kong Graduate School of
Business School and Rockefeller Technology Solutions,
Renwick, J.P., Oing, Singh, GonzÃ¡lez, JJ.
Supreme Court, New York County (Carmen Victoria St. George,
J.), entered November 29, 2018, which, to the extent appealed
from as limited by the briefs, granted defendants'
motions for summary judgment dismissing plaintiff's Labor
Law § 241(6) claim, unanimously reversed, on the law,
without costs, and the motions denied.
brought this Labor Law § 241(6) action against
defendants for injuries he allegedly sustained while
installing cabling above a drop ceiling. Plaintiff contends
he hit his head on a steel beam due to defendants'
failure to provide him with a hard hat, in violation of Labor
Law § 241(6) and Industrial Code § 23-1.8, and the
inadequate lighting of the premises, in violation of
Industrial Code § 23-1.30.
moved for summary judgment supported by various affidavits,
claiming, among other things, that Industrial Code §
23-1.8 was inapplicable since plaintiff was not engaged in
activity that constituted "construction, excavation, or
demolition" within the meaning of Labor Law §
241(6), and that, in any event, the Industrial Code sections
cited were either too general or insufficiently relevant to
form a basis for section 241(6) liability.
Court granted defendants' motion, finding that section
241(6) "only applies to accidents caused during
demolition, construction and/or excavation, none of which was
underway at the time of the accident." Additionally, the
court found that plaintiff was only required to "move a
single tile out of the way and then snake a cable through a
drop ceiling that had already been fully installed. As such,
without more, plaintiff's work [did] not constitute
construction, excavation or demolition' within the
meaning of the statute.'" Supreme Court reasoned
that because the structure was not physically altered in some
way, plaintiff's work also could not constitute
appealed. We now reverse.
Law § 241(6) requires owners, contractors and their
agents to provide a safe workplace for workers performing
"construction, excavation or demolition work."
"In determining what constitutes construction' for
purposes of the statute we look to the Industrial Code which,
as relevant here, defines construction to include alteration
of a structure" (Saint v Syracuse Supply Co.,
25 N.Y.3d 117, 129 , citing 12 NYCRR 23-1.4[b];
see also Jablon v Solow, 91 N.Y.2d 457');">91 N.Y.2d 457 ).
that an issue of fact is raised as to whether plaintiff was
altering the structure when he was pulling cable above the
drop ceiling (see Weininger v Hagedorn & Co., 91
N.Y.2d 958 ) . In his deposition plaintiff
stated that, in order to access the cable, plaintiff pushed a
ceiling tile "over to the next tile." He described
his work at the time of the accident as "going up into
the ceiling... to figure out where we were going with the
cable." Plaintiff had been provided with a saw to cut
holes in the wall and ceiling when necessary.
work plaintiff performed is similar to the alteration
described in Weininger. There, "at the time of
his accident, the plaintiff was running computer and
telephone cable through the ceiling.... This involved...
access[ing] a series of holes punched in the ceiling and
pulling the wiring through" (id. at 959). The
Court of Appeals found that this work "involved making a
significant physical change to the configuration or
composition of the building or structure, not a simple,
routine activity," and thus held it to be an alteration
within the purview of section 240(1) (id. at 960
[internal quotation marks omitted]). Although
Weininger did not involved a section 241(6) claim,
its explanation of what work constitutes an
"alteration" is relevant to the case at bar
(see Saint, 25 N.Y.3d at 129; see also Sarigual
v New York Tel. Co., 4 A.D.3d 168');">4 A.D.3d 168 [1st Dept 2004],
lv denied 3 N.Y.3d 606');">3 N.Y.3d 606  ["Stripping the
insulation from the subject cable wire is an alteration under
[240(1)]"]). Thus, as "running cables" is
considered to be a "significant physical change" to
fall within the purview of alteration and not
"routine" maintenance, there remains a question of
fact as to whether plaintiff's work constituted an
alteration within the meaning of Labor Law § 241(6).
it is simply irrelevant that plaintiff could not remember if
he had made any holes while performing the installation work
or if they were preexisting. At issue is whether the
operative work plaintiff was engaged to perform was a
building alteration (Saint, 25 N.Y.3d at 124 ["
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'"], quoting Prats v
Port Auth. Of N.Y. & N.J., 100 N.Y.2d 878, 882
defendants' remaining argument, that the Industrial Code
sections cited were either too general or insufficiently
relevant to form a basis for section 241(6) liability, we
have held otherwise (see Rutkowski v New York Convention
Ctr. Dev. Corp., 146 A.D.3d 686, 687 [1st Dept 2017]
[holding that 12 NYCRR 23-1.8(c)(1) is sufficiently specific
with regard to the requirement of providing protective
apparel] ; Murphy v Columbia Univ., 4 A.D.3d 200,
202 [1st Dept 2004] [holding that 12 NYCRR 23-1.30 is
sufficiently specific with regard to the obligation to keep
work areas illuminated, and expert testimony regarding the
level of ...