MCCUE v. Consolidated Edison Co. of New York, Inc., et al., Defendants. (2018)

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 31, 2016, which, to the extent appealed from, denied plaintiff's motion for summary judgment on liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff commenced this action to recover for personal injuries he allegedly sustained when he fell from a utility pole while attempting to troubleshoot a cable installation activation that did not work.  However, his supervisor submitted an affidavit asserting, inter alia, that plaintiff's sole job functions were as a manager, providing administrative services and training, assessing materials and equipment needed for a job, and occasionally following up with an activation from ground level only, but that in no event were his duties to entail climbing any poles.

Supreme Court correctly determined that issues of fact exist as to whether the aerial work plaintiff contends he was performing when he fell was outside the scope of his employment and thus outside the protection of Labor Law § 240(1) (Simoes v. City of New York, 81 A.D.3d 514, 917 N.Y.S.2d 163 [1st Dept. 2011];  Vega v. Renaissance 632 Broadway, LLC, 103 A.D.3d 883, 885, 962 N.Y.S.2d 200 [2d Dept. 2013] ).  Moreover, Supreme Court correctly determined that issues of fact exist as to how the accident occurred.  Specifically, the individual who performed that activation testified that plaintiff was not present, and he could not recall any problems with the activation (see Macchia v. Nastasi White, Inc., 26 A.D.3d 225, 809 N.Y.S.2d 47 [1st Dept. 2006].