Does the work of the cable guy or telephone repairman fall within the protection of Law Law § 240(1)? A case from the First Department last week – Rhodes-Evans v 111 Chelsea LLC., 2007 NY Slip Op 07540 suggests that for many instances it does not.
The plaintiff was a Verizon field technician who was assigned to splice fiber optic cable in an existing cable box located in the parking garage of the defendant’s building to provide new digital telephone service to a tenant in the building. The cable box was 10 to 15 feet above ground level. The floor of the garage was littered with construction and other debris, and the plaintiff had to clear an area to place a ladder that she used to reach the cable box. Unable to move a large piece of sheet metal on the floor, the plaintiff placed the ladder so that at least two of its legs were on the metal. Plaintiff stood on the second rung from the top of the ladder looking for the splice on which she was to work. The box in which the splice was encased was to her right, thus necessitating that she turn the upper part of her body in that direction. As she searched for the splice, the ladder started going backwards. To avoid falling, plaintiff twisted her body and grabbed onto the cables and used her body to pull the ladder back into position. In so doing, she injured her back. The ladder never actually fell. Nor did plaintiff.
The building owner moved for summary judgment, inter alia, on the grounds that the plaintiff was not entitled to any relief under Labor Law § 240(1) since she was not engaged in construction-related activity. In order to be entitled to the statutory protection of Labor Law § 240(1), a worker must establish that he r she sustained injuries while engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240). The Supreme Court had denied the owner’s motion finding that the work in which plaintiff was engaged constituted an alteration.
However, the First Department reversed and granted the owner’s motion. The Court stated that in order to constitute an alteration, the statute required making a significant physical change to the configuration or composition of the building or structure. And it stated that there was nothing in this record to suggest that splicing a fiber optic cable located in a box was making a significant physical change to the garage or building.
If the plaintiff had been installing a new system, perhaps by installing a new box, and not splicing wires, perhaps the results would have been different. The plaintiff had attempted to make this argument, but the Court found that record did not support such a claim.