Ferrari v. Niasher Realty, Inc.

— Judgment modified on the law and as modified affirmed with costs to plaintiff, in accordance with the following Memorandum: Supreme Court erred in denying plaintiffs motion for partial summary judgment on liability under section 240 (1) of the Labor Law. Plaintiff fell 25 feet to the ground while removing storm windows for storage at defendant’s building. Plaintiffs employer was standing on a canopy holding the bottom of a ladder plaintiff was using. Plaintiff fell as he was removing a storm sash, which was secured with butterfly screws, from the top part of a window.

Section 240 (1) provides, in pertinent part: "All contractors and owners and their agents * * * in the * * * altering * * * of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor * * * ladders * * * and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” By enacting section 240 (1), the Legislature intended to protect workers at elevated heights (see, Lockwood v National Valve Mfg. Co., 143 AD2d 509). The statute should be " 'construed as liberally as may be for the accomplishment of the purpose for which it was thus framed’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521, rearg denied 65 NY2d 1054, quoting Quigley v Thatcher, 207 NY 66, 68). Thus viewed, plaintiffs removal of the storm windows may be considered an "altering” for purposes of section 240 (1) (see, Izrailev v Ficarra Furniture, 70 NY2d 813, 815; Bland v Manocherian, 66 NY2d 452, 460; see also, Terry v Young Men’s Hebrew Assn., 168 AD2d 399).

Moreover, this Court recently held that the installation of cable television on a utility pole constituted an "altering” for purposes of section 240 (1) (Dedario v New York Tel. Co., 162 AD2d 1001, 1003). There, the plaintiff climbed the pole, detached the subscriber’s cable, removed a frequency trap and then reconnected the cable. There is no significant distinction between the removal of the frequency trap in Dedario and plaintiffs removal of a storm window here.

Lastly, as the First Department recently held, "[t]he fact that plaintiff also sought recovery under section 202 of the Labor Law, specifically pertaining to 'window cleaning’, does not preclude plaintiff from relying on section 240” (Terry v Young Men’s Hebrew Assn., 168 AD2d, supra, at 400).

Accordingly, plaintiff should have been granted partial summary judgment on liability under Labor Law § 240 (1) and the jury should have been charged on that cause of action. Therefore, plaintiff is entitled to $500,000 in damages, the full amount awarded by the jury, since plaintiffs contributory negligence is no defense (see, Klien v General Foods Corp., 148 AD2d 968, 969). Given this resolution, the other issues raised on appeal are academic.

All concur, except Lawton and Davis, JJ., who dissent in part and vote to affirm, in the following Memorandum.