The First Department determined defendant's motion to dismiss plaintiff's Labor Law 240(1) cause of action was properly denied. Plaintiff climbed up a permanent ladder to fix a roof leak. The ladder was wet with rain, shaky and too close to the wall. Plaintiff fell when he attempted to come back down the ladder from the roof:
… [D]efendant [is not] entitled to dismissal of the Labor Law § 240(1) claim. Plaintiff was engaged in repairing the roof, an activity to which Labor Law § 240(1) applies, and not merely in routine maintenance … . Moreover, the permanently affixed ladder that provided the sole access to plaintiff's elevated work site was a safety device within the meaning of Labor Law § 240(1) … . In view of plaintiff's testimony that the ladder shook and was wet and was too close to the wall to allow room for his feet on the rungs, defendant failed to demonstrate as a matter of law that plaintiff was provided with proper protection. Kolenovic v 56th Realty, LLC, 2016 NY Slip Op 04005, 1st Dept 5-24-16
LABOR LAW-CONSTRUCTION LAW (FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF'S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS)