In the context of a legal malpractice action based on the failure to timely commence a Labor Law 240 (1) action, the Second Department determined there was a question of fact whether plaintiff was engaged in routine maintenance (not covered by the Labor Law) or repair (covered by the Labor Law) at the time he fell from a ladder:
Here, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the plaintiff was engaged in “repair[s]” at the time of his accident or whether he was engaged in routine maintenance. On the one hand, the defendants submitted evidence establishing that the plaintiff was changing a ballast in a light fixture at the time of his accident, a job which constitutes routine maintenance since the replacement of this component occurs in the course of normal wear and tear … . However, the defendants also submitted the plaintiff’s deposition testimony in support of their motion. The plaintiff testified at his deposition that he was in the midst of disconnecting, splicing, cleaning, and assessing the internal electrical wires in order to fix a light fixture when he fell from the ladder. Thus, the plaintiff’s deposition testimony demonstrated the existence of a triable issue of fact as to whether the plaintiff was “repairing” the light fixture at the time of his accident … . Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 2017 NY Slip Op 05709, 2nd Dept 7-19-17
LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE OR REPAIR COVERED BY LABOR LAW 240 (1) WHEN HE FELL FROM A LADDER 2ND DEPT)