The plaintiff, Robert Johnson, moves for an order pursuant to CPLR §3212 granting plaintiff partial summary judgment on the issue of liability as it applies to plaintiff's claim under §240(1) of the Labor Law. The defendants, Massapequa Fire Department and Massapequa Fire District, cross-move for an order granting the defendants summary judgment dismissing the complaint, and oppose the plaintiff's motion for partial summary judgment on the issue of liability. The plaintiff submits a reply affirmation.

The plaintiff has initiated this action for personal injuries as a result of an incident that occurred on August 23, 2004. The plaintiff avers that at the time of the incident, he was employed as a carpenter for E&A Construction, a company regularly hired to do alteration, restoration and construction at municipal buildings in Nassau County. Mr. Johnson states that he was assigned by E&A Construction to assist in the alteration of the roof at the defendants' premises. On the date of [*2]the accident, Mr. Johnson was standing on a scaffold taking measurements when the wooden plank he was standing on broke causing him to fall six feet to the ground.

Section 240(1) of the Labor Law requires that owners and general contractors "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Violation of Labor Law §240(1) mandates the imposition of liability regardless of negligence and is deemed to create a statutory cause of action unrelated to questions of negligence. "Labor Law §240 imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards." (Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974). "The statute is to be interpreted liberally to accomplish its purpose." (Id, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509).

Here the plaintiff has met his prima facie burden for entitlement to partial summary judgment on liability against the defendants on the Labor Law §240(1) claim.

The plaintiff has demonstrated that he was engaged in the alteration of a building, that he was exposed to a gravity-related risk, that no safety devises were provided, and that while he was so engaged, he fell to the ground, approximately six feet down. Accordingly, the plaintiff has demonstrated entitlement to summary judgment as a matter of law against the defendants, owner-contractor, by establishing that he was subject to an elevation-related risk and that the defendants violated Labor Law §240(1) by not providing any safety devices. (Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974).

The defendants argue that the plaintiff's duty was to inspect a region of the building and take measurements. Therefore, the defendants contend that since the plaintiff was not acting within the scope of any of the enumerated protected activities, plaintiff's motion for summary judgment under Labor Law §240(1) should be denied.

The Second Department in Fitzpatrick v. State of New York, 25 AD3d 755, following the recent Court of Appeals case of Prats v. Port Authority of New York and New Jersey, 100 NY2d 878, as instructive, found that while the worker's replacement of a photo cell could be properly characterized as routine maintenance work, "it was not a separate phase of [the] worker's larger assignment of restoring lighting to [the] parking lot that was easily distinguishable from other parts of the larger assignment", encompassing an activity protected under scaffold law. The Court in Prats held that although the worker was inspecting finishing touches he had altered at the time he fell,

"[h]e was a member of a team that undertook an enumerated activity under a construction contract, and it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury [*3]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."

In the case at bar, the plaintiff's inspection and measurements of a region in the building was necessary for the installation of a truss system to support the roof, and thus part of the work being performed. The plaintiff, a carpenter, for E&A Construction, was hired to assist in the alteration of the roof at the defendants' premises. He was a member of a team that undertook an enumerated activity. Here, as in Prats and Fitzpatrick, the work performed by the plaintiff "did not fall into a separate phase easily distinguishable from other parts of the larger construction and contemporaneous with other work that formed part of a single project" covered by Section 240(1). (Fitzpatrick v. State, 25 AD3d 755, citing Prats v. Port Authority of New York and New Jersey, 100 NY2d 878).

In light of the foregoing, plaintiff's motion for partial summary judgment against the defendants on the issue of liability pursuant to Labor Law §240(1) is granted and the defendants' cross-motion for summary judgment is denied.

E N T E R :

________________________________

J.S.C.

Dated: April 3, 2007

cc: Goidel & Siegel, LLP

Siler & Ingber, LLP