In Parente v 277 Park Ave. LLC, decided June 25, 2009, The New York Appellate Division, First Department granted plaintiff’s motion for summary judgment under Section 240 of The New York State Labor Law.
The plaintiff was injured when he fell off a ladder he had placed on a desktop in an office leased by defendant Chase, while inspecting a malfunctioning booster fan over the desk. In rejecting the defendants’ argument that the work was only routine maintenance The Court held:
Labor Law § 240(1) imposes absolute liability on owners, contractors and their agents for injuries to workers engaged in the repairing of a building or structure that results from falls from ladders or other similar devices that do not provide the intended protection against such falls (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 ). It does not, however, apply to routine maintenance that is not performed in the context of construction or renovation. Replacement of parts that routinely wear out is considered maintenance, outside the purview of this section (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 ). Where something has gone awry, however, requiring repair, § 240(1) is applicable (see Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 201-202 ; Franco v Jemal, 280 AD2d 409 ).
No evidence was presented that the cause of the booster fan’s malfunction was wear and tear on the power box motor and that only routine maintenance was required to fix the booster fan. Although the injured plaintiff stated this was sometimes a problem, neither he nor his supervisor actually knew the reason for the fan’s breakdown, so he went to work on this particular weekend to investigate. An employee of the tenant testified that booster fans did not break down on a regular basis. Thus, plaintiff was not engaged in routine maintenance when he fell. Instead, he was attempting to repair a broken fan by first ascertaining the cause of the breakdown.