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QUESTION OF FACT WHETHER SNAKING A WIRE ABOVE CEILING TILES IS ‘CONSTRUCTION’ WITHIN THE MEANING OF LABOR LAW 241(6); SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was injured while snaking a wire about ceiling tiles. Supreme Court held the work was not “construction” within the meaning of the statute and the First Department disagreed:

Labor Law § 241(6) requires owners, contractors and their agents to provide a safe workplace for workers performing “construction, excavation or demolition work.” “In determining what constitutes construction’ for purposes of the statute we look to the Industrial Code which, as relevant here, defines construction to include alteration of a structure” … .

We find that an issue of fact is raised as to whether plaintiff was altering the structure when he was pulling cable above the drop ceiling … . In his deposition plaintiff stated that, in order to access the cable, plaintiff pushed a ceiling tile “over to the next tile.” He described his work at the time of the accident as “going up into the ceiling . . . to figure out where we were going with the cable.” Plaintiff had been provided with a saw to cut holes in the wall and ceiling when necessary. … [A]s “running cables” is considered to be a “significant physical change” to fall within the purview of alteration and not “routine” maintenance, there remains a question of fact as to whether plaintiff’s work constituted an alteration within the meaning of Labor Law § 241(6). Emery v Steinway, Inc., 2019 NY Slip Op 09368, First Dept 12-26-19

 

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