In a recent Fourth Department decision, Brown v Concord Nurseries, Inc., 2007 NY Slip Op 00795, The plaintiff was injured when he fell from a ladder. At issue was whether the work being performed by the plaintiff at the time of his fall constituted a repair of the building, thus falling within the ambit of Labor Law s. 240(1), or was instead excludable as routine maintenance. At the time of his injury, the plaintiff was clamping a broken torsion spring of an overhead door.
The Fourth Department concluded that trial court properly denied the defendant's motion for summary judge on the Labor Law s. 240(1) claim:
The court properly determined that the work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented the proper functioning of the overhead door of a storage building at defendant's nursery complex, constituted the repair of a building rather than routine maintenance and thus constituted "an activity protected under the statute" (Shapiro v ACG Equity Assoc., 233 AD2d 857, 857; see Bruce v Fashion Sq. Assoc., 8 AD3d 1053; Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972-973; cf. Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53).
This holding isn't particularly surprising since the Court concluded that that the overhead door was not functioning properly as a result of the broken spring. Last November the Third Department also considered the issue of whether the work being performed by the plaintiff when he was injured constituted routine maintenance. That case is discussed here.