MORRIS v. NEW YORK TELEPHONE COMPANY (1998)

Supreme Court erred in granting plaintiffs' motion for partial summary judgment on liability under Labor Law § 240(1).   Erskin Morris (plaintiff) was an employee of third-party defendant, which had contracted to perform work for defendant.   Plaintiff testified that, on the day of the accident, he was assigned to assist in the dismantling of equipment from defendant's premises so that it could be moved to another site.   In order to remove fuses to cut off the electrical current before he dismantled the equipment, plaintiff ascended a ladder that rolled along a track attached to a superstructure suspended from the ceiling.   According to plaintiff, the ladder rolled out of its ceiling track due to the absence of a safety bolt or braking device, causing both plaintiff and the ladder to fall to the concrete floor.

On this record, there is an issue of fact whether the activity in which plaintiff was engaged at the time of the accident constituted the alteration of a structure, as opposed to routine maintenance in a nonconstruction, nonrenovation context (see, Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237;  see also, Rennoldson v. Volpe Realty Corp., 216 A.D.2d 912, 629 N.Y.S.2d 141, lv. dismissed 86 N.Y.2d 837, 634 N.Y.S.2d 446, 658 N.E.2d 224).   Further, the evidence establishes a delay of several hours between the time of the fall and plaintiff's reporting of it.   On this record, there is an issue of fact whether the accident occurred as plaintiff asserts it did (see, Abramo v. Pepsi-Cola Buffalo Bottling Co., 224 A.D.2d 980, 981, 637 N.Y.S.2d 840;  Hamilton v. Tam Ceramics, 214 A.D.2d 951, 952, 626 N.Y.S.2d 635).

Order unanimously reversed on the law without costs and motion denied.

MEMORANDUM: