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.”