REMOVING PORTABLE LIGHTING EQUIPMENT IS NOT ‘ALTERING’ A STRUCTURE WITHIN THE MEANING OF LABOR LAW 240(1), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff (McCarthy) was not engaged in activity covered by Labor Law 240 (1) when he fell from the roof of a broadcast booth when removing portable lighting:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1), through the submission of, inter alia, a transcript of McCarthy’s deposition testimony, which demonstrated that the work McCarthy was performing did not constitute “altering” within the meaning of the statute. McCarthy testified that his work consisted of, inter alia, bringing in and removing portable lighting equipment. McCarthy testified that one of his coworkers had attached the scrim, which is a “double-weave fabric” that is used to equalize lighting levels during filming, to the exterior of the domestic broadcast booth using C-clamps, which are screw-based clamps, and rope. McCarthy testified that on the day of the accident, he walked along the ledge outside of the broadcast booth, cut the rope holding the scrim, removed the scrim, and placed those items in the hallway. He testified that he went back out on the ledge to retrieve three C-clamps, which were screwed into the roof, and fell backwards onto the stadium below. McCarthy’s work of bringing in and removing portable lighting equipment did not constitute altering of any building or structure … . Further, under these circumstances, the placement of a lighting scrim, secured to the exterior of the broadcast booth with screw-based C-clamps, involved no significant physical change to a structure … . McCarthy v City of New York, 2019 NY Slip Op 05121, Second Dept 6-26-19