Plaintiff Marlon Declercq commenced this action to recover damages he sustained, as foreman for First Quality Maintenance (FQM), a building maintenance company, when he fell from a ladder while working at Worldwide Plaza, located in 825 Eighth Avenue, New York, [*2]New York, a building owned by defendant WWP Office, LLC. Plaintiff now moves, pursuant to CPLR 3212(c), for partial summary judgment as to liability on his New York Labor Law § 240 claim. Defendant opposes and cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint.

Plaintiff's accident occurred during the cleaning of the last section. Plaintiff testified that he was standing on an aluminum extension ladder hosing down the wall when the ladder kicked out from underneath him, causing him to fall approximately 20 feet to the floor and sustain injuries.

Thereafter, plaintiff commenced this action by summons and complaint seeking monetary damages. Plaintiff now moves for partial summary judgment on liability, and defendant cross-moves for summary judgment to dismiss the complaint.

Labor Law § 240 (1), also known as the Scaffold Law (Ryan v Morse Diesel, Inc., 98 AD2d 615, 615 [1st Dep't 1983]), provides in relevant part:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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, slings, 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.

"Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold...or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person". John v Baharestani, 281 AD2d 114, 118 (1st Dep't 2001) (internal quotations omitted). The Scaffold Law does not apply merely because work is performed at elevated heights, rather, it applies where the work itself involves risks related to differences in elevation. See Ross v Curtis-Palmer [*3]Hydro-Electric Co., 81 NY2d 494, 500-501 (1993).

To prevail on a Labor Law § 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries. See Blake v Neighborhood Housing Services of New York City, 1 NY3d 280, 287 (2003); Felker v Corning, Inc., 90 NY2d 219, 224-225 (1997); Torres v Monroe College, 12 AD3d 261, 262 (1st Dep't 2004).

The Court of Appeals has held that the duty to provide safety devices is nondelegable, and that absolute liability is imposed where a breach has proximately caused plaintiff's injury. See Gordon v Eastern Ry. Supply, Inc., 82 NY2d 555, 559 (1993); Bland v Manocherian, 66 NY2d 452, 459 (1985). As a general principle, the statute is to be liberally construed to accomplish its purpose of better protecting workers engaged in certain dangerous employments. Sherman v Babylon Recycling Ctr., Inc., 218 AD2d 631, 631 (1st Dep't 1995). The Court of Appeals has further held that the hazards contemplated by Labor Law § 240 (1) "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured." Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 (1991). The Court of Appeals has distilled this inquiry to the "single decisive question [of] whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 (2009).

Plaintiff's Motion for Partial Summary Judgment

Plaintiff argues that he is entitled to summary judgment, as there are no issues of fact as to defendant's liability on his Labor Law § 240 (1) claim. In support of his motion, plaintiff proffers, inter alia, his deposition transcript and the deposition transcripts of Mike Caruso and Eric Weaver. Plaintiff argues that he was engaged in a protected activity under Labor Law § 240 (1), as cleaning is specifically enumerated in the statute. Plaintiff further argues that defendant violated the statute by failing to furnish proper and adequate safety devices to prevent plaintiff from falling, which proximately caused his injuries.

Plaintiff correctly argues that, since the ladder he was using while cleaning the subway station failed to remain stable and erect, and as no other adequate safety devices were provided to him by defendant, so as to protect him while subjected to an elevation-related risk, defendant is liable for his injuries under Labor Law § 240 (1). See Keenan v Simon Property Group, Inc., 106 AD3d 586, 589 (1st Dep't 2013) (where plaintiff was injured when he fell from his unsecured ladder, plaintiff demonstrated that defendants violated that statute by failing to provide him with adequate safety devices to afford him proper protection while working).

The collapse or malfunction of a safety device for no apparent reason creates a presumption in plaintiff's favor that the device was insufficient to provide proper protection. See Panek v Cty of Albany, 99 NY2d 452, 458 (2003) (summary judgment for plaintiff where it was uncontroverted that a ladder collapsed beneath plaintiff, causing him to fall); Cosban v New York City Transit Authority, 227 AD2d 160, 161 (1st Dep't 1996); Aragon v 233 West 21st Street, Inc., 201 AD2d 353, 354 (1st Dep't 1994). [*4]

"Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240 (1)". Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 174 (1st Dep't 2004) (internal citations omitted); see Klein v City of New York, 89 NY2d 833, 835 (1996); Hart v Turner Constr. Co., 30 AD3d 213, 214 (1st Dep't 2006) ("plaintiff met his prima facie burden through testimony that while he performed his assigned work, the eight-foot ladder on which he was standing shifted, causing him to fall to the ground"); Peralta v American Telephone and Telegraph Co., 29 AD3d 493, 494 (1st Dep't 2006) ("unrefuted evidence that the unsecured ladder moved, combined with evidence that no other safety devices were provided to plaintiff, warranted a finding that the owners were absolutely liable under Labor Law § 240 (1)").

In opposition to plaintiff's motion for partial summary judgment, defendant maintains that it is not liable for plaintiff's injuries under Labor Law § 240 (1), as plaintiff was involved in routine cleaning, in a non-construction and non-renovation context. According to defendant, it contracted with FQM for, inter alia, a monthly washing of the walls in the subway station area where plaintiff fell, and that plaintiff was cleaning interior walls of such area with a regular hose, and, thus, plaintiff was involved in routine maintenance, not protected by Labor Law § 240 (1). Defendant further argues that there is a genuine issue of fact as to how the subject accident occurred, thus precluding summary judgment for plaintiff. To support its argument, defendant states that there are inconsistent versions from several of plaintiff's co-workers, as to the specific activity being performed by plaintiff at the time he fell, such that a genuine issue of fact has been raised.

Here, plaintiff has established entitlement to partial summary judgment, as to liability, on his Labor Law § 240 (1) claim. It is uncontested that plaintiff was cleaning a structure when he fell approximately 20 feet from the ladder, and that such ladder was the only safety device provided to him. It is further uncontested that plaintiff's fall proximately caused his injuries. Moreover, cleaning is a specifically enumerated activity under Labor Law § 240 (1). Thus, plaintiff has established that defendant violated its nondelegable duty, under Labor Law § 240 (1), to provide adequate safety devices, so as to protect plaintiff from an elevation-related risk, which was the proximate cause of his injuries. As such, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure...to do [so]". Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

In opposition, defendant conclusorily states that an issue of fact exists as to the specific activity plaintiff was engaged in at the moment he fell. Defendant states that plaintiff and his co-worker, Eric Weaver, both testified that plaintiff was cleaning the subway walls with a hose at the time the ladder failed to remain erect and fell, along with plaintiff. Defendant contends that these statements are inconsistent with the testimony of plaintiff's other co-worker, Mike Caruso, who testified that they were washing the window ledges with a brush and soapy water when he stepped away from holding the ladder and plaintiff fell. Lastly, defendant contends that a third co-worker, Oscar Munoz, testified that he did not see plaintiff's accident, but the washing of the walls had nothing to do with subsequent painting of such walls, that he knew of. Although unclear from the submissions, it appears that the inconsistency in the testimony, pointed out by [*5]defendant, centers on the object being cleaned (either the interior walls or the interior window ledges), at the moment plaintiff fell. However, defendant does not dispute that both the walls and the window ledges constitute structures under Labor Law § 240 (1). Further, defendant does not dispute that, whether plaintiff was cleaning the walls or the window ledges at the time he fell, plaintiff was, nonetheless, cleaning a structure, which is a specifically enumerated activity under Labor Law § 240 (1). Thus, defendant has failed to raise a material issue of fact, sufficient to deprive plaintiff of partial summary judgment as to liability pursuant to Labor Law § 240 (1). Additionally, as discussed below, plaintiff was not engaged in routine maintenance, as argued by defendant. Thus, plaintiff's motion for partial summary judgment is granted.

Defendant's Cross-Motion for Summary Judgment

As in its opposition to plaintiff's motion, defendant, in its cross-motion for summary judgment argues that plaintiff was engaged in routine maintenance, not covered by Labor Law § 240 (1), and, thus, plaintiff's complaint must be dismissed. Relying on several Appellate Division, Second Department cases, defendant contends that Labor Law § 240 (1) does not apply if the activity at issue involves routine maintenance, in a non-construction, non-renovation context. According to defendant, plaintiff was cleaning interior walls with a regular hose, thus, establishing that he was engaged in routine maintenance. In support of its argument, defendant relies on Soto v J. Crew Inc., 95 AD3d 721 (1st Dep't 2012), wherein the Appellate Division, First Department, interpreting the Court of Appeals decision in Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521 (2012), held that dusting a shelf in a J. Crew store constituted routine maintenance. While defendant concedes that commercial window washing is an activity covered by Labor Law § 240 (1), defendant argues that, here, plaintiff was not window washing or performing commercial cleaning, rather, plaintiff was hosing down soap on interior walls, such that any case law pertaining to window washing or commercial cleaning is inapplicable. As further explained below, defendant's argument is inapposite.

While the Appellate Division, First Department, in Soto, held that dusting a shelf is cleaning that constitutes routine maintenance, the Court of Appeals has held that cleaning the interior windows in a dormitory, similar to the cleaning activity found in Broggy v Rockefellar Group, Inc., 8 NY3d 675 (2007), "is encompassed within Labor Law § 240 (1) if it created the type of elevation-related risk that the statute was intended to address." Swiderska v New York University, 10 NY3d 792, 793 (2008). Here, plaintiff's washing of the window ledges and walls are akin to window washing at an elevated height, not mere dusting. Similarly, defendant erroneously relies on Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521 (2012). In such case, the Court of Appeals limited its holding to exclude the cleaning of a manufactured product, by a factory worker, from protection under Labor Law § 240 (1). Id. at 525. Here, it is uncontested that plaintiff was not a factory worker, nor was he cleaning a manufactured product, and, thus, the Dahar case is not applicable.

The Court of Appeals has specifically held that

[t]he crucial consideration under [Labor Law] section 240 (1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240 (1); or whether a window's exterior or interior is being cleaned. Rather, liability turns on whether a particular...washing task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against.

[*6]Broggy v Rockefellar Group, Inc., 8 NY3d at 681. As to the enumerated activity of cleaning, pursuant to Labor Law § 240 (1), the Court of Appeals has consistently found that routine maintenance consists of "routine, household window washing". Brown v Christopher St. Owners Corp., 87 NY2d 938, 939 (1996); see Broggy v Rockefellar Group, Inc., 8 NY3d at 680. Contrary to defendant's argument, whether plaintiff was engaged in an activity protected by Labor Law § 240 (1) does not turn on whether plaintiff was cleaning windows. See Gordon v Eastern Ry Supply, Inc., 82 NY2d 555 (1993). Neither the statute, nor the case law, has applied Labor Law § 240 (1), as it relates to the enumerated activity of cleaning, only to the washing of windows. In fact, the Court of Appeals, in Gordon, found liability when a worker fell from a height while cleaning a railroad car. Id. Thus, it is clear that the Court of Appeals never intended to narrow the scope of "cleaning" under Labor Law § 240 (1) exclusively to cleaning windows. Further, the Court of Appeals has held that "it 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". Prats v Port Authority of New York and New Jersey, 100 NY2d 878, 882 (2003).

Here, it is undisputed that plaintiff was cleaning at the time of his accident, albeit he was cleaning the window ledges and walls in the interior of a commercial building. It is further undisputed that plaintiff was not engaged in the cleaning of residential or household buildings. As plaintiff was not engaged in routine household or domestic cleaning, plaintiff's activity of cleaning did not constitute routine maintenance, and, thus, is a protected activity under Labor Law § 240 (1). As such, defendant's motion for summary judgment to dismiss plaintiff's complaint is denied.

Accordingly, it is

ORDERED that plaintiff's motion for partial summary judgment on the issue of defendant's liability under Labor Law § 240 (1) is granted, with the issue of damages to be determined at the trial of this matter; and it is further

ORDERED that defendant's cross-motion for summary judgment dismissing plaintiff's complaint is denied; and it is further

ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendant with notice of entry.

This constitutes the decision/order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

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