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holding that the application of bomb blast film to the lobby windows qualified as a significant alteration for purposes of Labor Law § 240 because it significantly altered the configuration or composition of the structure by changing the way the lobby windows reacted to, inter alia , the elements, which distinguished the work from the activity of merely affixing an advertisement on a billboard, "a more frequent change that has less structural effect."
Summary of this case from Crescent Beach Club LLC v. Indian Harbor Ins. Co.Opinion
Decided February 18, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 4, 2009. The Appellate Division affirmed an order of the Supreme Court, New York County (Debra A. James, J.; op 2008 NY Slip Op 33173[U]), which had granted a motion by plaintiff for partial summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action and denied a cross motion by defendants for summary judgment dismissing that cause of action. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of Supreme Court, properly made?"
Plaintiff, an installer, was injured in a fall from an A-frame ladder in a building owned by defendant Verizon New York, Inc., which had contracted for capital improvements that included a site hardening and security project at the building. Plaintiffs employer was engaged as a subcontractor for the installation of a shatter proofing bomb blast film called Blast-GARD on windows in the front and rear lobbies of the building. Although the bomb blast film was installed a month earlier, plaintiff had to do a reinstallation on the day of the accident in order to address complaints made by the architect.
The Appellate Division concluded that plaintiff had made a prima facie showing of proximate cause under Labor Law § 240 (1) with his unrefuted testimony that the ladder collapsed beneath him causing him to fall, and that defendants' characterization of plaintiffs work as merely cosmetic was dispelled by the unchallenged evidence that bomb blast film changes the property of glass.
Belding v Verizon N.Y., Inc., 65 AD3d 414, affirmed.
Cozen O'Connor, New York City ( Edward Hayum of counsel), for appellants.
Kelner Kelner, New York City ( Gail S. Kelner of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs. The certified question should be answered in the affirmative.
Applying the bomb blast film to the lobby windows, in and of itself, qualifies as a significant alteration ( see Labor Law § 240 ; Joblon v Solow, 91 NY2d 457, 465). BlastGARD significantly altered the configuration or composition of the structure by changing the way the lobby windows react to explosions, impacts and the elements. The effects of this one-time security enhancement distinguish the activity from affixing an advertisement on a billboard, a more frequent change that has less structural effect ( see Munoz v DJZ Realty, LLC, 5 NY3d 747).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.