Smith v. Pergament Enterprises of S.I.Smith v. Pergament Enterprises of S.I.
Aрpeal from an order of the Supreme Court (Teresi, J.), entered October 19, 1999 in Albany County, which, inter alia, granted plaintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1).
On August 29, 1995, plaintiff William Smith (hereinafter plaintiff) sustained injuries when he fell from an unsecured stepladder while installing computer equipment in an office in Staten Island owned by dеfendant and leased to plaintiff’s employer. To install the equipment, plaintiff, a chief computer oрerator for the Department of Motor Vehicles, was required to run cable from the server locatеd in one room, up a pillar into the area above the eight-foot high drop ceiling, pull and toss the cable across the area above the ceiling and then drop it down through the interior walls to the location in the various rooms where new computers were to be installed. To accomplish this installation, plaintiff nеeded to remove ceiling tiles and, using a saw, cut holes in the sheetrock walls near the computer work stations. While standing on the third or fourth step of a six-foot aluminum ladder to gain access to the area above the drop ceiling, plaintiff tossed the cable across the
Plaintiff and his wife, derivatively, commenced this action seeking damages under Labor Law §§ 200, 240 (1) and § 241 (6) and under a common-law theory of negligenсe. Plaintiffs subsequently moved for partial summary judgment on the issue of liability on their Labor Law § 240 (1) claim and defendant crоss-moved for summary judgment dismissing the complaint against it. Supreme Court granted plaintiffs’ motion for partial summary judgment and dеnied defendant’s summary judgment motion. On defendant’s appeal, we affirm.
First, Supreme Court correctly awarded рlaintiffs partial summary judgment on their Labor Law § 240 (1) cause of action. Contrary to defendant’s contention, at the time of this accident plaintiff was engaged in “altering” a building within the purview of Labor Law § 240 (1). As the court recognized, plaintiff’s work running computer cables above the ceiling, through the interior of the walls and through holes cut in the walls tо install computer equipment involved “making a significant physical change to the configuration or composition of the building,” not a simple activity or routine maintenance (Joblon v Solow,
Further, as this Court has previously held, where, as here, “a worker injurеd in a fall was provided with an elevation-related safety device, the question of whether the device рrovided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact * * * except where the device collapses, slips or otherwise fails to perform its function of supporting the workеrs and their materials” (Beesimer v
Notably, the fact that there were no eyewitnesses to plaintiffs fall does not preclude summary judgment in plaintiffs’ favor (see, Niles v Shue Roofing Co., supra, аt 785). Defendant did not challenge plaintiffs account of this fall, instead arguing that plaintiffs account raised a quеstion of fact regarding whether plaintiff lost his balance or whether the ladder slipped, precipitating his fаll (see, Briggs v Halterman, supra; Spenard v Gregware Gen. Contr., supra; Xirakis v 1115 Fifth Ave. Corp.,
Finally, it has been established that construction work within the meaning of Labor Law § 241 (6) includes the alteration оf a building in which plaintiff was engaged (see, Joblon v Solow,
Mercure, J. P., Peters, Carpinello and Graffeo, JJ., concur. Ordered that order is affirmed, with costs.