OLIVEIRA v. LITTLE JOHN MOVING INC (2001)

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about June, 2, 2000, which, inter alia, in an action under Labor Law § 200, 240(1) and 241(6) by a laborer against a building owner, granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment on the issue of liability under section 240(1), unanimously modified, on the law, to reinstate the causes of action under sections 240(1) and 241(6), and otherwise affirmed, without costs.

 Plaintiff asserts that while scraping the building lobby to prepare it for painting, the ladder on which he was standing slipped and he fell to the ground.   While he does not know what caused the ladder to slip, he claims that after he fell he noticed that the ladder did not have rubber feet.   The scraping performed by plaintiff is encompassed within the term “painting” in section 240(1) (see, Perez v. Spring Creek Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468;  Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515), and need not have been incidental to the other listed activities, such as construction, repair or alteration, to be covered (cf., Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284;  Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888).   Whether the ladder provided proper protection for purposes of section 240(1) is a question of fact for the jury (see, Benefield v. Halmar Corp., 264 A.D.2d 794, 795, 695 N.Y.S.2d 394).   It was also error to dismiss plaintiff's section 241(6) claim. Specific standards that would apply here if plaintiff's testimony were credited are found in 12 NYCRR 23-1.21(b)(3)(iv), which provides that a ladder shall not be used “[i]f it has any flaw or defect of material that may cause ladder failure” (see, Otero v. Cablevision of N.Y., 186 Misc.2d 651, 658, 719 N.Y.S.2d 807).   We have considered and rejected plaintiff's other arguments.