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Second Department Expands Meaning of “Altering” in Context of Labor Law §240 (NY)

November 16, 2016

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In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/11/Goodwin-v.-Dix-HIll-Jewish-Ctr.pdf">Goodwin v. Dix Hills Jewish Center</a></em>, the Second Department Appellate Division overturned the Nassau County Supreme Court’s grant of defendant’s motion for summary judgment dismissing the Labor Law Section 240(1) cause of action and granted plaintiff’s motion for summary judgment, in a case that further expanded the Court’s interpretation of “altering” within the meaning of New York’s labor law.
Plaintiff allegedly fell from a ladder on the defendant’s premises and sustained injuries. The plaintiff was restoring and installing wood paneling and molding and metal doors at the center.  Before beginning his work, plaintiff removed two audio speakers from the wall.  A rabbi, employed by the center, asked the plaintiff to rehang the two speakers as the plaintiff and his coworkers were almost done with the work.  The plaintiff agreed to rehang the speakers, which required drilling holes and installing brackets in an elevated position in the room.  Plaintiff used an eight-foot A-frame ladder to hang the speakers. Plaintiff, on the third or fourth rung of the ladder, was in the process of installing the second speaker, when the ladder suddenly “started swinging,” causing plaintiff to fall and sustain injuries.
The Supreme Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s motion for summary judgment alleging violations of Labor Law Sections 240(1) and 241(6).  The Appellate Division reversed the lower court's rulings, because plaintiff was engaged in the “altering” of a building at the time of his accident, and was entitled to the protections of Labor Law Section 240(1).
“Altering” within the meaning of Labor Law 240(1) requires making a significant physical change to the configuration or composition of the building or structure” as opposed to “routine maintenance and decorative modifications.”  The installation of wood paneling was an alteration of the building as the dimension, thickness, and composition of the sheetrock walls and steel doors were changed which constituted a significant physical change to the configuration or composition of the building. The Court rebuffed defendant’s contention that rehanging a speaker did not constitute the “altering” of a building or structure.”  The Court opined that the intent of Labor Law Section 240(1) was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts - such as rehanging a speaker.
This is a troubling decision for property owners and general contractors -- if drilling two holes to hang a stereo speaker constitutes "altering" under Labor Law §240, it seems anything involving a power tool and a fall from a ladder could lead to strict liability.  Thanks to Justin Pomerantz for his contribution.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.
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