The defendant moved, pursuant to CPLR 4404, for an Order setting aside the jury verdict as contrary to the weight of the evidence and for a directed judgment as a matter of law. The defendant moved at the close of the plaintiffs' proof and at the close of all the proof, pursuant to CPLR 4401, to dismiss the plaintiffs' case on the grounds that a prima facie case was not established under Labor Law § 240 (1). The plaintiffs opposed the motions. The plaintiffs moved at the close of the proof, pursuant to CPLR 4401, for a verdict directing that the plaintiff was engaged in a protected activity under Labor Law § 240 (1). The defendant opposed that motion.

Background

Before trial, the plaintiffs moved, and the defendant cross-moved, for partial summary judgment relative to the Labor Law § 240 (1) cause of action. The Hon. David J. Mahoney, J.S.C., denied the cross-motion on February 24, 2003, and granted in part the plaintiff's motion on June 20, 2003. Both parties appealed. On April 30, 2004, for purposes relevant to this decision, the Appellate Division, Fourth Department, affirmed the Orders (Bissell v Town of Amherst, 6 AD3d 1229; Bissell v Town of Amherst, 6 AD3d 1230). In doing so, the Appellate

Division, Fourth Department held that if the site was a work site at the time of the accident, strict liability should be imposed under Labor Law § 240 (1). If the site was not a work site when the accident happened, the statute was inapplicable (Bissell, 6 AD3d 1230). The Appellate Division, Fourth Department defined the question to be decided by a jury as whether the plaintiff was engaged in the repair of a building when he was injured (Bissell, 6 AD3d at 1230). The Appellate Division, Fourth Department also affirmed that part of the decision that established certain facts for all purposes in the case and effectively dismissed the recalcitrant worker defense by finding that the plaintiff was not the sole, proximate cause of his injury (Bissell, 6 AD3d at 1230).

Decision

The defendant contends that whether a contractual arrangement existed between the defendant and the third-party defendant to perform work protected under Labor Law § 240 (1) is a question of law. The defendant further contends that the work actually performed does not [*2]constitute "repair" work as contemplated under Labor Law § 240 (1), while the plaintiffs argue that it does. The Appellate Division, Fourth Department held that whether the plaintiff was assisting his employer in performing a "repair" or an "estimate" was a question of fact for a jury (Bissell, 6 AD3d at 1230). After trial, that exact question was put to the jury, and was resolved in the plaintiffs' favor.

Further, contrary to the defendant's assertions, the jury verdict as to whether the plaintiff was at the site to assist with an estimate or a repair was not against the weight of the evidence. The memo prepared and signed by an employee of the defendant stated that McGonigle and

Hilger, the plaintiff's employer, was on site to repair the roof. Additionally, although the defendant asserts that a written estimate, work order or contract was required before any contractor was authorized to proceed with work on its behalf, and that there was no such document with McGonigle and Hilger, there was conflicting evidence as to whether this was the defendant's required and followed procedure. Dennis Saxton, of Neth & Sons (the entity that completed the work after the plaintiff's accident), testified that the defendant did not ask Neth for a written estimate, nor was a written estimate, work order or contract provided before the work on the roof was completed. The plaintiff also presented evidence of other work performed by McGonigle & Hilger in the past without a prior written estimate. That evidence alone was a sufficient basis for the jury's conclusion that the defendant and McGonigle & Hilger had a verbal agreement to proceed with the roof work. While McGonigle & Hilger did not complete the work, there was sufficient evidence in the record for the jury to conclude that McGonigle & Hilger had been hired by the defendant to perform the work and would have completed it, but for the plaintiff's accident.

The closer question is whether the work actually performed was a "repair" as contemplated by Labor Law § 240 (1). As noted by the Court of Appeals, "[t]he critical inquiry in determining coverage under [Labor Law § 240 (1)] is what type of work the plaintiff was performing at the time of injury [internal citation omitted]" (Panek v County of Albany, 99 NY2d 452, 457). The defendant contends that the work eventually completed by Neth involved unplugging a drain, and as such, was ordinary maintenance rather than a repair. The defendant also contends that the plaintiff is not protected under the statute because repair work had not started when he was injured.

The plaintiff asserts that the work at issue was a "repair" because there was an actively leaking roof that needed to be fixed. He asserts that the work involved correcting a problem, and not something done routinely. On that basis, the plaintiff contends that the work was a repair rather than ordinary maintenance. The plaintiff also asserts that when the accident occurred, he and other McGonigle & Hilger employees were investigating a malfunction of the roof drainage system to determine the cause of the leak, which is a protected activity under Labor Law § 240 (1).

Whether a worker is engaged in repair or routine maintenance under Labor Law § 240 (1) may be a question of fact (see Reger v Harry's Harbour Place Grille, 5 AD3d 1065). Generally, work is a repair within the purview of Labor Law § 240 (1) if it involves fixing something that is malfunctioning (Beehner v Eckerd Corp., 307 AD2d 699, affd 3 NY3d 751; Bruce v Fashion Square Assoc., 8 AD3d 1053), inoperable (Craft v Clark Trading Corp., 257 AD2d 886), or [*3]operating improperly (Izrailev v Ficarra Furniture of Long Island, 70 NY2d 813; Reger, 5 AD3d at 1065). However, the work is routine maintenance if it is caused by a common problem (Abbatiello v Lancaster Studio Associates, 3 NY3d 46), is the result of normal wear and tear, or is done as part of scheduled maintenance (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526).

Whether the plaintiff was involved in a repair under Labor Law § 240 (1) also depends on, inter alia, whether the work was part of a separate phase, easily distinguishable from the construction and alteration work (Prats v Port Authority of New York and New Jersey, 100 NY2d 878). The Court of Appeals has held that an injury that occurs during an inspection before an

enumerated activity has commenced (Martinez v City of New York, 93 NY2d 322), or after an enumerated activity is completed (Beehner v Eckerd Corp., 3 NY3d 751) is not within the narrow confines of Labor Law § 240 (1). Such inspections are beyond Labor Law § 240 (1) because they are too remote from, unrelated to and are part of a phase that is easily distinguishable from the covered work (Prats, 100 NY2d 878; see also Ciesielski v Buffalo Industrial Park, 299 AD2d 817; McMahon v H S M Packaging Corp., 302 AD2d 1012).

The Court of Appeals has stated clearly that whether a particular inspection falls within Labor Law § 240 (1) must be determined from the facts in each case and depends on the context of the work performed (Prats, 100 NY2d at 883). Significantly, the Court emphasized that it is not appropriate "to isolate the moment of injury and ignore the general context of the work" (Prats, 100 NY2d at 882).

The plaintiff in this case was employed by McGonigle & Hilger, the company hired to repair a roof that actively was leaking. The evidence established that the roof drainage system was malfunctioning or inoperable when McGonigle & Hilger was called, although the cause was unknown. The plaintiff was part of the repair crew and was climbing a ladder to the roof to determine the cause of the malfunction of the roof drainage system and the work necessary to repair the roof when he was injured. The evidence showed that the McGonigle & Hilger employees intended to begin the repair work after determining the cause of the leak.

No evidence was presented that the roof problem was a common one, regularly corrected as part of a scheduled maintenance program, or the result of normal wear and tear. Because the work involved fixing something that was malfunctioning or operating improperly, the work was

not routine maintenance and constituted a repair within the meaning of Labor Law § 240 (1). Further, the defendant's reliance on Martinez, 93 NY2d 332, is misplaced because this case is factually distinguishable. In Martinez, the plaintiff was injured while performing an inspection during a separate, investigatory phase before the construction work, that was to be performed by others, commenced. Although the plaintiff was injured before he could assess the cause of the leak, he was climbing the ladder to perform an inspection of the roof drainage system preparatory to the necessary repairs (see Bagshaw v Network Service Management, 4 AD3d 831). As a result, the plaintiff's inspection here was ancillary to and close in time to the repair work (see Prats, 100 NY2d at 881-82). Further, the plaintiff had to climb the ladder to perform the inspection and the work because it was the means of access to the roof (see Spiteri v Chatwal Hotels, 247 AD2d 297, 299). [*4]

As delineated by the Court of Appeals, this Court will not "isolate the moment of injury" or read the phrase "time of injury" in an overly literal manner (Prats, 100 NY2d at 881). The time of injury must be viewed within the context of the work. Applying that framework, an inspection of the cause of a malfunction in furtherance of repairing an apparent malfunction is within the scope of the activities covered by Labor Law § 240 (1) (Short v Durez Division-Hooker Chemicals & Plastic Corp., 280 AD2d 972, 973). Because the evidence at trial demonstrated that the plaintiff was engaged in that covered activity at the time of the accident, the defendant's trial motions to dismiss are denied, and the defendant's motion to set aside the jury verdict and direct judgment in favor of the defendant is denied. The defendant's motion for a new trial is denied as moot.

Based on the foregoing, it is hereby

ORDERED that the defendant's trial motions to dismiss are denied, and it is further

ORDERED that the plaintiffs' motion for a directed verdict is denied, and it is further

ORDERED that the defendant's motion to set aside the jury verdict, direct judgment in favor of the defendant, and for a new trial, is denied.

The foregoing Decision constitutes the Order of this Court. No further Order need be submitted.

Dated: October 11, 2005

____________________________________

Erin M. Peradotto, J.S.C.

GRANTED: