In a recent decision, Keilitz v. Light Tower Fiber N.Y., Inc., 2023 NY Slip Op 05661 (1st Dep’t 2023), the Appellate Division, First Department, overturned a Supreme Court, New York County decision that denied plaintiff’s motion for partial summary judgment as to Labor Law § 240(1).
Plaintiff testified he was performing work inside a manhole as a member of a four-person team comprised of electricians, which was tasked with installing fiber optic cables in two manholes, located approximately one block away from each other. The job entailed “dragging pipes”, which involved pulling ropes through conduits between the two manholes to connect the piping. As plaintiff was climbing down a manhole using a permanent ladder, a vacuum, which weighed twenty to thirty pounds, fell into the manhole and struck plaintiff on the head.
The First Department, held that plaintiff established he was engaged in “altering” activity as contemplated in Labor Law § 240(1) because the work involved more than “feeding cable through a preexisting hole,” being part of a much larger, multi-worker project to install a fiber optic network through a 20-manhole structure where none had previously existed.
Additionally, because the vacuum fell from ground level into the manhole and struck plaintiff, it falls under the purview of the elevation-related risk covered by Labor Law § 240(1). The fact that the vacuum was at ground level initially does not remove the facts from the purview of § 240(1) as plaintiff was working underground, establishing the significant elevation differential.
Here, the First Department’s decision focuses, inter alia, on the word “alter” as found in the text of Labor Law § 240(1). For the statute’s protection to apply, a plaintiff must be engaged in “erection, demolition, repairing, altering, painting, cleaning or pointing…”. In this matter, although the conduit existed previously, the First Department focused on the scope of the project, rather than the individual task that plaintiff was performing, to assess the work as qualifying for Labor Law § 240(1) protection. It rejected defendants’ argument that because the conduit existed previously, the structure was not being “altered” for the purposes of the statute.
The Keilitz decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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