On November 5, 2004 while installing residential cable service, plaintiff fell off a ladder from a height of approximately 11 to 12 feet and was injured. According to plaintiff, an employee of third-party defendant AM Broadband LLC (Broadband), a subcontractor for CSC Holdings, Inc. , s/h/a Cablevision Systems Corporation (Cablevision), he first evaluated the job and determined that he would need to install a hook and run a line on the utility pole across the street, drill a hole

through the second floor exterior of the building and then run the line into the interior to a customer's apartment. Thereafter, he planned to attach the utility pole line to the building's junction box.



Using a ladder provided by his employer, he first attached a "J" hook to the utility pole. Leaving that ladder behind, he then crossed back to the building and asked the customer if he could use a second ladder which happened to be laying flat on an overhang at the rear of the building.



There was a four-foot deep awning attached to the side of the building over the first floor and plaintiff set up the second ladder at an angle to accommodate it. After climbing about four or five rungs from the top of the ladder, it "slipped out" and plaintiff fell.

Plaintiff explains the reason he used two ladders was to minimize the time that he would have to stop traffic with safety cones in order to hook up the cable line from across the street to the newly installed exterior junction box.



Section §240(1) of the Labor Law imposes absolute liability upon owners, contractors or their agents for violations the statute. The comparative fault of a worker is not at issue (Haimes v. New York Telephone Co., 46 NY2d 132).



Plaintiff's expert safety engineer opines that plaintiff was not provided with proper protection because the job required two workers and a personal lift or scaffold. Therefore Broadband was in violation of Industrial Code sections 23-1.21(b)(4)(ii), (iv) and (v) (see Brown v. Concord Nurseries, 37 AD3d 1076).



Turning first to defendant 3432 Lex Corp., the owner of the building and its summary judgment motion to dismiss the entire complaint, its principal, John Boggi, testified that the corporation owned an aluminum ladder with swivel metal feet with a rubber base. It was kept on a flat roof in the rear of the building and the tenants were specifically told not to touch the ladder. He explained he did not know the person listed on plaintiff''s work order, the purported customer, and did not have any knowledge cable was being installed. Lex Corp.'s approval was not obtained by the tenant and no one had permission to use the ladder.



Lex's Corp.'s motion to dismiss plaintiff's labor Law §240(1) cause of action is granted. As owner of the premises it had no nexus to plaintiff's work. Plaintiff was on the owner's property by virtue of Public Services Law §211 which prohibits a landlord from interfering with cable [*2]television installation. Because of the statute, this defendant cannot be charged with the duty of providing the safe working conditions mandated under Labor Law §240(1) (Abbatiello v. Lancaster Studio Associates, 3 NY2d 46).

The same logic must hold true for actions brought pursuant to Labor Law §241(6).

With respect to plaintiff's claims of a violation of Labor Law §200 and ordinary negligence, there is no evidence whatsoever that defendant or its agent directed, controlled or supervised the work. Further there was no contractual relationship between Lex Corp. and the other defendants.



Plaintiff's negligence claim is based upon defendant having actual or constructive notice of the alleged unsafe condition, i.e., the defective ladder which was provided to him by a purported tenant.



Plaintiff admits the ladder was laying flat on top of a large overhang in the back of the building and when he asked if he could use it the customer said "no problem." However, it is uncontested that defendant Lex Corp. warned the tenants not to place anything on the roof or to use the ladder.



Even if defendant's ladder was defective or unsafe, the inquiry regarding foreseeability must also be viewed with the query of was plaintiff's injury was produced solely by a self-operating, intermediary cause disconnected from defendant's action (see Milwaukee & S.P.R. Co. v. Kellog, 94 US 469). If the intervening act was one that could reasonably be foreseen by defendant, defendant may still be subject to liability (e.g., Gordon v. Eastern Ry. Supply, 82 NY2d 555).



The Court determines as a matter of law under the facts presented that defendant could not have foreseen his tenant or someone on the tenant's behalf would give a cable installer permission to use the ladder which he kept above a one-story overhang and the installer would then employ it in place of the ladder provided to him by his employer to gain access to an exterior wall above the four-foot deep awning.



Reasonable foresight, not prophetic vision, is the measure of responsibility (Cartes v. Saks Fifth Avenue, 277 AD 606, 609).



Accordingly, defendant's motion is granted regarding Labor Law §200 and common law negligence and plaintiff's complaint against 3432 Lex Corp. and all cross-claims are dismissed.



Defendant Cablevision also opposes plaintiff's motion for summary judgment under Labor Law §240(1) and cross-moves for summary judgment under Labor Law §200, §240(1), §241(6) and common law negligence.

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Cablevision's motion for summary judgment under Labor Law §200 and common law negligence is granted and that cause of action and any cross-claims are dismissed.



There is no evidence Cablevision directed, supervised or controlled the method or manner of plaintiff's

work or was otherwise negligent by having actual or constructive notice of the alleged dangerous condition (Dupkanicova v. Vasilof, 35 AD3d 650; Pilch v. Board of Education of the City of New York, 27 AD3d 711).

Turning to Cablevision's cross-motion pursuant to Labor Law §240(1), the Court first must determine if plaintiff's work is of the kind covered under this section. The Court concludes it is. 12 N.Y.C.R.R. §23-1.4(b)(13) defines construction work as including alteration work. Altering requires a plaintiff to make a significant physical change to the "configuration or composition" of the building and does not encompass mere maintenance (e.g., Jablon v. Solow, 91 NY2d 457 - the installation of a clock; Enge v. Ontario County Airport, 26 AD3d 896 - telephone installation; compare Abbatiello v. Lancaster Assoc., supra).



Issues of fact remain, however, as to whether plaintiff s choice to use another ladder was the sole proximate cause of his injuries in light of Cablevision's expert affidavit that the ladder supplied by Broadband was adequate to safely perform the job (Blank v. Neighborhood Housing Services, 1 NY3d 280; see Sytachanski v. Morse Diesel International, 9 AD3d 457; Urias v. Orange County Agricultural Society, 7 AD3d 515; see also Markaj v. Metropolitan Transportation Authority, 18 AD3d 625; e.g. Canino v. Electronic Technologies Company, 28 AD3d 932).



Both plaintiff's motion and Cablevision's cross-motion on the §240(1) claim are denied.



Regarding the §241(6) claim, as determined above plaintiff was involved in alteration work which is a covered activity. The factual issue remains as to whether the ladder provided to plaintiff by his employer was suitable to perform the work or some sort of scaffold was needed in violation of the Industrial Code.



Whether the ladder slipped or the wind knocked him off has little relevance to this motion but may be raised at trial as evidence of plaintiff's inconsistent statements (see Curte v. City of New York, 21 AD3d 1050).



The remainder of plaintiff's motion is denied.



Plaintiff and Cablevision are directed to appear at the DCM Pre-Trial Conference on MAY 8, 2007.





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Dated: April 10, 2007............................................................J.S.C.