In Fox v H&M Hennes & Mauritz, L.P;et.al., 2011 NY Slip Op 03205, decided April 19, 2011, The Appellate Division, Second Department rejected defendant’s claim that plaintiff was enagaed in routine maintenance and thus Section 240(1) was not applicable.
The facts as set forth by The Court were as follows;
“The plaintiff was employed by the fourth-party defendant Garrity Electric, Inc. (hereinafter Garrity), as a mechanic performing general electrical contracting work. Pursuant to an agreement between the defendant third-party plaintiff, H & M Hennes & Mauritz, L.P. (hereinafter H & M), and the third-party defendant/fourth party plaintiff Maintenance, Etc., LLC (hereinafter Maintenance), which provides retail companies with vendors for construction services, Garrity was hired to replace bulbs and ballasts/transformers in 78 overhead light fixtures, located approximately 12 feet above the floor, in a retail store leased by H & M. Garrity had done business with H & M since 2000, performing electrical work for which it was paid the sum of $30,000 to $50,000 per year. Garrity furnished a team of “seven or eight” workers, including the plaintiff, which was led by a team foreman, to perform the subject work in the H & M store. The plaintiff allegedly was injured when he fell from a ladder while engaged in this work. The Supreme Court, inter alia, granted the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action.”
In holding that the plaintiff was engaged in repair work at the time of his injury and thus covered by The Statute it stated:
“Contrary to H & M’s contention, the provisions of the statute apply to the facts of this case. When viewed in isolation, the plaintiff’s task of replacing a transformer might be considered routine maintenance (see Deoki v Abner Props. Co., 48 AD3d 510; Sanacore v Solla, 284 AD2d 321). However, the issue of whether any particular task “falls within section 240(1) must be determined on a case-by-case basis, depending on the context of the work” (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 883 [emphasis added]). Here, in view of the agreement between Garrity and H & M, the plaintiff’s position as a mechanic at Garrity assigned to perform general electrical work, and the overall scope of the entire job which Garrity was engaged to perform at the store, the task which the plaintiff was performing at the time of the accident was a repair, as opposed to routine maintenance (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d at 883; Fitzpatrick v State of New York, 25 AD3d 755; see also Nowakowski v Douglas Elliman Realty, LLC, 78 AD3d 1033; cf. Deoki v Abner Props. Co., 48 AD3d 510).”
The New York Construction Accident Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury in construction accidents in New York.