In Lijo v. City of New York, 2006 NY Slip Op 05594, the Second Department considered the issue of whether the injured plaintiff was conducting work that fell within the ambit of Labor Law s. 240(1) at the time that he was injured.
Prior to the accident, the plaintiff had worked for 3 months underground on a sewer repair project in Queens. 2 days before the accident, a backhoe used in the project came into contact with overhead electrical wires, causing one of them to fall off of a metal hook and hang low to the ground. Plaintiff was elevated in the bucket of a backhoe and was attempting to fix the broken wire when he fell nearly 25 feet to the ground.
The Court determined that the plaintiff was employed in the repair or alteration of the sewer line when he fell, since the work he was performing in fixing the electrical line was ancillary to those acts. The Court stated that:
[I]t is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts... Here, at the time of the accident, the plaintiff and his coworkers were still in the process of finishing the restoration phase of the sewer repair project... The street excavation was still being backfilled with asphalt and there is a triable issue of fact as to whether reattaching the wire to the hook was required as part of the plaintiff's employer's contract with the City. Certainly, there is no bright line separating the enumerated and nonenumerated work. (Internal citations and quotations omitted).
I think that the Court's decision is reasonable and in keeping with the underlying purpose of the Labor Law statutes, although it's certainly not a clear cut issue and is fact specific. Given the facts of this case, the Court's decision makes sense to me.