In Morales v. D & A Food Service, et.al; June 25th 2008, The Court Of Appeals in reversing The First Depatrment’s dismissal of plaintiff’s Section 240(1) claim held;
“The order of the Appellate Division should be reversed, with costs, defendant Santomero’s motion for summary judgment denied, plaintiff’s cross motion for partial summary judgment on his Labor Law § 240 (1) cause of action against defendant Santomero granted and certified question answered in the negative.
Contrary to defendant’s argument, plaintiff’s work constituted an alteration within the meaning of Labor Law § 240 (1) (see Joblon v Solow, 91 NY2d 457, 465 ). In light of our recent decision in Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333 ), defendant’s contention that he lacks a sufficient nexus with plaintiff to support liability under section 240 (1) is without merit. Since plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his section 240 (1) claim and defendant failed to raise a triable issue of fact in opposition thereto, plaintiff is entitled to partial summary judgment on liability. ”
The facts as set forth in The Appellate Division’s decision were that;
“Without obtaining landlord’s approval or even notifying landlord, tenant hired plaintiff to make repairs and changes to the premises. On plaintiff’s last scheduled day of work, tenant supplied him with an extension ladder to enable him to reach the top of a 10-to 12-foot wall, where he drilled a hole and passed through telephone cables. As plaintiff began to descend the ladder, which was leaning against the wall and was not held by anyone, it slipped and he fell to the floor.”
“Because the work was performed without landlord’s knowledge, and in violation of the lease requirement that tenant obtain prior consent, the landlord cannot be held liable under Labor Law § 240(1)”