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Ladder Which “Kicked Out” from Under Plaintiff Entitled Plaintiff to Partial Summary Judgment/Replacement of Cracked Glass Constituted Covered “Repair” Not Routine Maintenance

The First Department, over a dissent, determined that the replacement of cracked glass in skylight constituted repair rather than routine maintenance, and therefore was a covered activity under Labor Law 240 (1).  A ladder used by the plaintiff to access the skylight “kicked out” from under him:

“The plaintiff need not demonstrate that the [safety device] was defective or failed to comply with applicable safety regulations,” but only that it “proved inadequate to shield [plaintiff] from harm directly flowing from the application of the force of gravity to an object or person” … . The inexplicable shifting of an unsecured ladder may alone support a § 240(1) claim if a worker is caused to fall due to such shifting … . A worker’s prima facie entitlement to partial summary judgment on his or her § 240(1) claim may be established by proof that the ladder provided collapsed under the worker while he or she was engaged in an enumerated task … .

The crux of this case involves the question of whether plaintiff was involved in repair or maintenance work. “Essentially, routine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering” … . In distinguishing between what constitutes repair as opposed to routine maintenance, courts will consider such factors as “whether the work in question was occasioned by an isolated event as opposed to a recurring condition” …; whether the object being replaced was “a worn-out component” in something that was otherwise “operable” …; and whether the device or component that was being fixed or replaced was intended to have a limited life span or to require periodic adjustment or replacement …

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Here, plaintiff described the panes as being constructed of “heavy plate glass” with wire running through them and stated that they simply “do not crack or wear out over time.” Plaintiff showed, without contradiction, that these panes were not being replaced as a result of normal wear and tear, as they were not expected to be regularly replaced. Soriano v St Mary’s Orthodox Church of Rockland, Inc, 2014 NY Slip Op 04419, 1st Dept 6-17-14

 

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