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First Department Takes Expansive View on both “Altering” Work and “Elevation-Related Risks” as Defined by N.Y. Labor Law

November 17, 2023

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Recently, in Keilitz v. Light Tower Fiber New York, Inc., 2023 N.Y. Slip Op. 05661 (1st Dep’t 2023), the First Department ruled on a plaintiff construction worker’s appeal, after the lower court granted summary judgment to defendants on plaintiff’s claims arising from Labor Law § 240(1). Plaintiff, an electrician, was installing fiber optic cables underground in a manhole, when a vacuum being used at street level fell and struck the plaintiff on the head.

At issue was whether the plaintiff was engaged in a protected activity enumerated in Labor Law § 240(1), and whether the vacuum at street level posed an elevation-related risk contemplated by Labor Law § 240(1).

First, the Appellate Division held that plaintiff’s work constituted “altering” work, contrary to the trial court’s findings that his work merely entailed “feeding cable through a preexisting hole.” Instead, the First Department found that plaintiff’s installation of fiber optic cables was part of a larger project that would ultimately require drilling holes into communications rooms, and thus constituted altering work as protected within Labor Law § 240(1). Second, the court disagreed with the trial court’s conclusion that the vacuum’s position at ground level removed plaintiff’s case from the Labor Law § 240(1) protections for elevation-related risks. Rather, the court held that since the plaintiff was working underground, with a significant elevation differential between him and the vacuum at ground level, his work posed an elevation-related risk protected by New York Labor Law. Accordingly, the First Department granted summary judgment in favor of plaintiff for his Labor Law § 240(1) claim.

This case serves as a reminder of N.Y. Labor Law’s liberal construction of protected work, particularly in the First Department, and that protections against elevation risks under Labor Law § 240(1) can still be implicated even if the “risk” is located at ground level.

Keilitz v. Light Tower Fiber New York Inc.
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