Salvaging Parts from Building About to be Demolished Constitutes "Alteration" Under Labor Law §240(1)
January, 2003
Labor Law §240(1) requires that:
All contractors and owners and their agents * * *in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders,* * *and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
In its most recent interpretation of this statutory provision, the Court of Appeals has held that plaintiff’s work in salvaging parts from a building about to be demolished constitutes “alteration” as that word is used in the statute. In Panek v. County of Albany, 2003 WL 1700471, the high court reasoned that the term “altering” does not necessarily contemplate the building’s continued use after the completion of plaintiff’s work.
Facts
In Panek, plaintiff was an employee of the Federal Aviation Authority (FAA) at the Albany International Airport. The FAA leased an air traffic control tower from defendant County of Albany Airport Authority, which operates the facility for defendant County of Albany. As part of an airport renovation project, a new air traffic control tower was built and placed in service in February, 1999. The FAA then issued a contract for the demolition of the old tower, scheduled to begin in April, 1999. In preparation for that demolition, plaintiff was instructed to remove two air handlers from the old tower’s cooling system. After two days of work on this project, plaintiff successfully removed the first air handler. However, while removing the second air handler, plaintiff fell from a ladder and broke his ankle. Plaintiff filed suit alleging, inter alia, violations of Labor Law §240(1).
Analysis
On cross-motions for summary judgment, Supreme Court entered judgment for plaintiff on his §240(1) claim, concluding that the activity in which plaintiff was engaged at the time of his fall constituted an “alteration” of the old air traffic control tower. Defendants appealed, and the Appellate Division - Third Department reversed. The Third Department reasoned that plaintiff’s work could not be considered “alteration” because “the statute necessarily contemplates the continued use of the building after completion of any enumerated activities,” and the tower was instead scheduled for demolition.
The Court of Appeals reversed the Third Department and reinstated Supreme Court’s judgment for plaintiff. In rejecting the Third Department’s reasoning, the court reasoned that “‘altering’ within the meaning of the statute requires making a significant physical change to the configuration or composition of the building or structure....” Here, the court found, plaintiff was engaged in just such a “significant physical change:”
Here, plaintiff was clearly engaged in a significant physical change to the building when he was injured, thus satisfying the...standard for alteration. The removal of the two 200-pound air handlers required two days of preparatory labor, including the dismantling of electrical and plumbing components of the cooling system, and involved the use of a mechanical lift to support the weight of the air handlers. That plaintiff performed this substantial modification on a building ultimately scheduled for demolition does not change the nature of the work project at the time of his accident.•
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