| Belding v Verizon N.Y., Inc. |
| 2009 NY Slip Op 06078 [65 AD3d 414] |
| August 4, 2009 |
| Appellate Division, First Department |
| David Belding, Respondent, v Verizon New York, Inc., etal., Appellants. (And Other Actions.) |
—[*1] Kelner and Kelner, New York (Gail S. Kelner of counsel), for respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered November 26, 2008,which granted plaintiff's motion for partial summary judgment on the issue of liability on hisLabor Law § 240 (1) cause of action and denied defendants' cross motion for summaryjudgment dismissing that cause of action, affirmed, without costs.
Plaintiff, an installer, was injured in a fall from an A-frame ladder on May 25, 2004 in abuilding owned by defendant Verizon New York, Inc. Verizon had engaged defendant TishmanInteriors Corporation as the construction manager for a capital improvement that included a sitehardening and security project at the building. According to the deposition of Tishman's assistantproject manager, the project entailed the reconstruction of the building's main entrance as well asthe installation of a security desk, cameras and card-read systems. Plaintiff's employer, ShatterGuard, was engaged as a subcontractor for the installation of a shatterproofing substance calledbomb blast film on windows in the front and rear lobbies of the building. Although the bombblast film was installed in April 2004, plaintiff had to do a reinstallation on the day of theaccident in order to address complaints made by the architect.
Plaintiff made a prima facie showing of proximate cause under section 240 (1) with hisunrefuted testimony that the ladder collapsed beneath him causing him to fall (see Panek vCounty of Albany, 99 NY2d 452, 458 [2003]).[FN*]Defendants, however, argue that plaintiff's work on the day of the accident was done purely tocorrect a cosmetic defect and did not, as plaintiff claims, constitute "altering," an activityenumerated under the statute. " '[A]ltering' within the meaning of Labor Law § 240 (1)requires making a significant physical change to the configuration or composition of thebuilding or structure" (Joblon v Solow, 91 NY2d 457, 465 [1998]). Prats v [*2]Port Auth. of N.Y. & N.J. (100 NY2d 878 [2003]), whichinvolved an assistant mechanic who fell from a ladder while readying air-conditioning units forinspection, is instructive. In discussing the applicability of section 240 (1) to the worker'sactivity, the Court of Appeals observed: "Although at the instant of the injury [plaintiff] wasinspecting and putting the finishing touches on what he had altered, he had done heavieralteration work on other days at the same job site on the same project. He was a member of ateam that undertook an enumerated activity under a construction contract, and it is neitherpragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignorethe general context of the work. The intent of the statute was to protect workers employed in theenumerated acts, even while performing duties ancillary to those acts" (id. at 882).
As noted above, the site hardening and security project was part of an overall capitalimprovement that included plaintiff's work as evidenced by the fact that his company, engaged asa subcontractor, was a member of the team involved in the alteration. Accordingly, we reject thedissent's and defendants' attempt to isolate the specific task plaintiff was engaged in at the timeof the injury. Defendants' characterization of plaintiff's work as merely cosmetic is dispelled bythe unchallenged evidence that bomb blast film changes the property of glass. Accordingly,plaintiff's employer was engaged to carry out a specific part of the alteration. It is also significantthat plaintiff was reinstalling the bomb blast film at the behest of an architect, a professional whowould generally be a key player in an alteration project. Construing section 240 (1) liberally soas to accomplish its purpose of protecting workers (see Greenfield v Macherich Queens Ltd. Partnership, 3 AD3d 429,430 [2004], citing Martinez v City of New York, 93 NY2d 322, 326 [1999]), we find thatplaintiff's reinstallation of the bomb blast film at the time of the accident was a protected activityunder section 240 (1). Martinez, which the dissent also cites, is readily distinguishable.The plaintiff in that case was an environmental inspector not engaged in or employed by acompany engaged in an activity enumerated in section 240 (1).
Defendants also fail to raise a triable issue of fact as to whether the ladder was "good enoughto afford proper protection" and that plaintiff's own negligence was the sole proximate cause ofthe accident (see Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]).
We have considered defendants' remaining arguments and find them to be without merit.Concur—Moskowitz, DeGrasse and Freedman, JJ.
Catterson, J.P., and McGuire, J., dissent in a memorandum by McGuire, J., as follows:Defendant Verizon New York, Inc. owns a building in midtown Manhattan and decided to havework performed on it to enhance safety and security. Verizon retained defendant Northern BayContractors as the general contractor of the project and defendant Tishman Interiors Corporationas the construction manager. The project, which began in the summer of 2003, included thereconstruction of the building's entranceway, and the installation in the lobby of a new securitydesk, turnstiles and access card readers, as well as security cameras throughout [*3]the building. Additionally, a polyester adhesive film was to beapplied to approximately six windows in the building's two lobbies. This film was designed toabsorb significant amounts of force (such as from an explosion), so as to both decrease thelikelihood of glass shattering from exposure to force and, in the event that the glass should break,to help hold the broken glass within the window frame, thereby preventing shards of glass frominjuring people or damaging property. The construction manager retained Shatter Guard, whichwas plaintiff's employer, to apply the film to the windows.
In April 2004, plaintiff applied the film to the interior portions of the windows in both thenorth and south lobbies. In each lobby plaintiff applied the film to three windows; each windowwas several feet from the ground, and the middle window, which was above the doors to thebuilding, was wider than the windows adjacent to it. To apply the film, plaintiff, with theassistance of a coworker, cleaned the window, cut the film to fit the window, pulled the liner offof the film, wet the back of the film, slid the film into place on the glass and used a squeegee toremove excess water from the film. Plaintiff and his coworker stood on a scaffold to slide thefilm into place and remove the excess water from the film. In addition to the scaffold, plaintiffused a box cutter to cut the film, a spray bottle containing soap and water to clean the windows,and a squeegee. Plaintiff and his coworker completed their task—applying the film to eachof the six windows—in one day.
Although the application of the film to the windows was completed in April 2004, theproject's architect requested that the film be adjusted on the center window in each lobby.According to plaintiff, "[t]he architect . . . didn't like that the seams [of the film] ranthrough the backs of the numbers of the [address of the building, which was printed on the centerwindows]." On May 25, 2004, accordingly, plaintiff and a coworker returned to the building toadjust portions of the film. To make the adjustments, plaintiff and the coworker needed to cutand peel away a portion of the film near the numbers of the address and reapply the film in amanner that would not obscure the numbers. The only tools they needed to perform this workwere a box cutter, a squeegee and ladders (or a scaffold) to reach the area on the windows wherethe numbers of the address were printed.
Plaintiff and his coworker adjusted the film on the center window of the north lobby withoutincident. In performing that adjustment, plaintiff and his coworker used a pair of ladders, onethat belonged to plaintiff and one that was obtained from the job site. The workers then went tothe south lobby to adjust the film on the center window of that lobby. After peeling away aportion of the film near the numbers of the address and cutting a piece of film to replace it,plaintiff, standing on a ladder obtained from the job site, and his coworker, standing on theladder belonging to plaintiff, attempted to test fit the new piece of film they were going to applyto the window. As they were doing so, the legs of the ladder on which plaintiff was standing"buckled" and plaintiff, who was approximately 10 feet above the ground, fell, injuring his rightfoot and leg.
Plaintiff commenced this action against defendants seeking damages under variousprovisions of the Labor Law, including section 240 (1). Plaintiff moved for summary judgmenton the issue of liability on that cause of action, and defendants cross-moved for summaryjudgment dismissing it. Supreme Court granted plaintiff's motion, denied defendants' crossmotion, and this appeal ensued.
Labor Law § 240 (1) provides special protection to workers who are both exposed toan elevation-related risk and engaged in certain enumerated activities. One of thoseactivities—the [*4]only one relevant to thisappeal—is "altering" a building or structure. Defendants contend that the application ofthe film to the windows did not "alter" the building or the windows and therefore plaintiff wasnot protected under the statute. Defendants also contend that even if plaintiff had "altered" thebuilding in April 2004 when he originally applied the film, he was not "altering" the building orthe windows on May 25, 2004 when he returned to the premises to adjust portions of the film.Plaintiff argues that the application of the film to the windows "altered" the "physical propertiesof the glass" and "the manner in which the glass . . . would respond to explosiveforces." Plaintiff also argues that the work performed on May 25, 2004 was an integral part ofthe ongoing security upgrade project—work that was ancillary to the "alterations" to thebuilding. Thus, plaintiff asserts that he was engaged in "altering" the building on each of the twodays he worked there.
The Court of Appeals' principal decision regarding the activity of "altering" a building orstructure is Joblon v Solow (91 NY2d 457 [1998]). There, the plaintiff, an electrician,was employed by a company that served as the house electrician to a company that leased officespace from the owner of the premises. The plaintiff was directed by his supervisor to install anelectric wall clock in a room in the lessee's space. As the room in which the clock was to beinstalled did not have an electrical outlet, electrical wiring from an adjacent room needed to beextended to the room in which the clock was to be installed. To accomplish this, the plaintiff andhis coworker needed to chop a hole through the concrete block wall separating the rooms and runwiring encased in conduit from the existing power source through the wall. The plaintiff and hiscoworker, working in the room with the existing power source, chiseled through the wall using ahammer and chisel. The coworker then went from that room to the room in which the clock wasto be installed to receive from the plaintiff the electrical wire. The plaintiff fell from theunsecured ladder on which he was standing while attempting to pass the wire to his coworker.
The plaintiff brought a federal action against the owner and lessee under, among otherprovisions, Labor Law § 240 (1), and the defendants impleaded the plaintiff's employer.The parties made various summary judgment motions with respect to the main action and thethird-party action, but the core issue on those motions was whether the plaintiff was "altering"the building. The District Court concluded that he was not, and the Second Circuit certified tothe Court of Appeals the question of whether the plaintiff was engaged in a protected activity.
Before the Court of Appeals, the plaintiff, consistent with the Third Department's decision inCox v International Paper Co. (234 AD2d 757 [1996]), argued that a worker "alters" abuilding or structure under section 240 (1) whenever the activity the worker is performing"changes" the building or structure (Joblon, 91 NY2d at 464). Thus, the plaintiffmaintained that he "altered" the building because the activity he performed changed the building,i.e., he chopped a hole in the concrete wall (id.). The defendants and third-partydefendant contended that the context of the work leading to the injury was controlling, and thatonly when the work was performed as part of a building construction job should Labor Law§ 240 (1) liability attach (id.). Because the work the plaintiff performed was notpart of a building construction project, the defendants and third-party defendant argued that theplaintiff did not "alter" the building (id.).
The Court rejected both suggested constructions of "altering." With respect to the plaintiff'sargument that the controlling inquiry was whether the activities the worker performed "changed"the building, the Court was "concerned that allowing every change in a structure to qualify as analteration [would] give[ ] the statute too broad a reach. A task as simple and routine ashammering a nail could, taken literally, be viewed as a change in the structure. Adopting [*5]plaintiff's interpretation of the Cox rule if taken to itslogical conclusion, would be tantamount to a ruling that all work related falls off ladders will fallwithin Labor Law Section 240" (id. [internal quotation marks omitted]). The Court alsoobserved that defining every change in a building or structure as an alteration would be contraryto the Court's own precedents. Thus, the Court wrote, "Although the Cox court attemptedto distinguish Smith v Shell Oil Co. (85 NY2d 1000), a fair application of plaintiff's ruleto that case—where we concluded that a worker injured while changing a lightbulb on anilluminated sign was involved only in routine maintenance and stated no claim under Labor Law§ 240 (1)—would result in liability. To remove and replace a burnt-out bulb, strictlyspeaking, is to change the sign. Similarly, the minimal cleaning of windows we deemed beyondthe reach of the statute in Brown v Christopher St. Owners Corp. (87 NY2d 938,rearg denied 88 NY2d 875) also might well be an alteration under such a definition.Such routine maintenance and decorative modifications should fall outside the reach of thestatute" (id. at 465). Similarly, the Court found that the defendants' proposedrule—that a worker could only recover under section 240 (1) when the work wasperformed as part of a building construction job—was contrary to the Court's precedentspermitting recovery for work performed outside of construction sites (id. at 464).
Instead, the Court determined "that 'altering' within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition ofthe building or structure" (id. at 465). Finding "the question is close," the Courtconcluded that the work performed by the plaintiff resulted in a significant physical change tothe configuration or composition of the building; the plaintiff (and his coworker) brought anelectrical power supply from one room to another, which required both extending wiring fromthe room with the existing power source and chiseling a hole through a concrete wall so as toreach the room in which the clock was to be installed (id.; see also Panek v County ofAlbany, 99 NY2d 452 [2003] [plaintiff engaged in "alteration" of building; plaintiff, using amechanical lift, removed two 200-pound air handlers after performing two days of preparatorywork, including dismantling of electrical and plumbing components of a cooling system]).
Another important Court of Appeals precedent on the issue of whether a worker wasengaged in a protected activity under Labor Law § 240 (1) is Martinez v City of NewYork (93 NY2d 322 [1999]). The plaintiff in Martinez was hired as anenvironmental inspector by a placement agency and assigned to work for a company that wasretained by the defendant to perform asbestos inspection services in public schools. Theinspection services were to be performed in phase one of a two-phase asbestos abatement projectin public schools. Phase one entailed the inspection of school buildings and the identification ofasbestos problem areas; phase two entailed the cleaning and removal work. The plaintiff's duties,performed solely during phase one, were to determine whether asbestos samples had beenpreviously taken, check areas marked as containing asbestos and measure areas where asbestoswas found. On the day he was injured, the plaintiff was in a building attempting to measure apipe that ran from a ceiling to the top of a closet. The pipe was approximately eight or nine feetabove the floor and the plaintiff climbed on a desk to reach it. The plaintiff fell from the deskand was injured.
The plaintiff commenced a Labor Law action against several defendants, claiming that hewas entitled to recover under section 240 (1). He moved for summary judgment on the issue of[*6]liability on that cause of action and some of the defendantscross-moved for summary judgment dismissing it. Supreme Court denied the plaintiff's motion,granted the defendants' cross motion and the Appellate Division affirmed.
The Court of Appeals affirmed, concluding that the plaintiff was not engaged in a protectedactivity. The Court wrote, in pertinent part, that "plaintiff's work as an environmental inspectorduring phase one was merely investigatory, and was to terminate prior to the actualcommencement of any subsequent asbestos removal work. In fact, none of the activitiesenumerated in the statute was underway, and any future repair work would not even beconducted by . . . plaintiff's supervisor, but by some other entity" (id. at326). Notably, the Court "reject[ed] the analysis employed [by the courts] below which focusedon whether plaintiff's work was an 'integral and necessary part' of a larger project within thepurview of section 240 (1) [, because] [s]uch a test improperly enlarges the reach of the statutebeyond its clear terms" (id.).
The Court of Appeals next addressed the issue of whether a worker was engaged in"altering" a building or structure in Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878[2003]). In Prats, the plaintiff was employed by a company that contracted with thedefendant to work on air-conditioning systems at the World Trade Center. The contract involvedcleaning, repairing and rehabilitating air handling units, and the company "was obligated toascertain 'the extent of all construction' related to the project" (id. at 879-880). Becauseof the size of some of the air handling units, the company was required to level floors, layconcrete and rebuild walls to replace large air filtering systems. The plaintiff was an assistantmechanic who worked on many facets of the project.
On the day he was injured, the plaintiff and a coworker were assigned to ready air handlingunits for inspection; part of that task entailed "perform[ing] any work [on the units] that had tobe done" (id. at 880). This work required wrenches, a welder set and "Craftsman-type"tools (id.). A coworker set up a ladder to inspect a piece of machinery that wassuspended approximately 20 feet from the floor and used the ladder to climb onto the unit. Thecoworker then asked the plaintiff to bring him a wrench and the plaintiff began to climb theladder with it. As the plaintiff was climbing the ladder, it slid out from under him and he fell tothe floor.
The plaintiff commenced an action against the defendant in federal court seeking damagesfor violations of Labor Law § 240 (1). The District Court granted the defendant's motionfor summary judgment dismissing that cause of action and the plaintiff appealed to the SecondCircuit, which certified the issue of whether the plaintiff was engaged in an enumerated activityto the Court of Appeals.
The Court of Appeals first determined that the plaintiff was engaged in "altering" thebuilding and was therefore covered under section 240 (1). The Court then distinguishedMartinez, observing that "the work here did not fall into a separate phase easilydistinguishable from other parts of the larger construction project. Plaintiff's inspection was notin anticipation of [his employer]'s work, nor did it take place after the work was done. Theinspections were ongoing and contemporaneous with the other work that formed part of a singlecontract. The employees who conducted inspections also performed other, more labor-intenseaspects of the project. Moreover, plaintiff worked for a company that was carrying out a contractrequiring construction and alteration—activities covered by section 240 (1). This contrastswith the asbestos inspector in [*7]Martinez, who did notwork for the company that would actually remove the asbestos" (id. at 881).
Next, the Court reviewed Joblon, noting that
"[t]here, we looked to the 'time of injury' to determine whether plaintiff's work fell withinsection 240 (1). Defendant would have us read that phrase in an overly literal manner. In ourview, however, the words must be applied in context. At one extreme, a construction workerwho, between hammer strokes, pauses to see where to hit the next nail is at that moment'inspecting.' But this is very different from an inspection conducted by someone carrying aclipboard while surveying a possible construction site long before a contractor puts a spade inthe ground. Here, [the plaintiff's employer] employed the plaintiff mechanic substantially toperform work that involved alteration of a building, and, under the facts of this case, he enjoyedthe protection of section 240 (1) even though he was inspecting, or more precisely, climbing aladder, at the moment of the accident . . .
"Although at the instant of the injury he was inspecting and putting the finishing touches onwhat he had altered, he had done heavier alteration work on other days at the same job site on thesame project. He was a member of a team that undertook an enumerated activity under aconstruction contract, and it is neither pragmatic nor consistent with the spirit of the statute toisolate the moment of injury and ignore the general context of the work. The intent of the statutewas to protect workers employed in the enumerated acts, even while performing duties ancillaryto those acts" (id. at 881-882).
In closing, the Court stated that "the question whether a particular inspection falls withinsection 240 (1) must be determined on a case-by-case basis, depending on the context of thework. Here, a confluence of factors brings plaintiff's activity within the statute: his position as amechanic who routinely undertook an enumerated activity, his employment with a companyengaged under a contract to carry out an enumerated activity, and his participation in anenumerated activity during the specific project and at the same site where the injury occurred"(id. at 883).
Accordingly, under Prats, "[w]hether plaintiff was involved in a protected activityunder the statute depends on several factors, including whether plaintiff was employed by acompany that was carrying out a construction or alteration project, whether plaintiff's work wasongoing and contemporaneous with that work, whether plaintiff was involved in performingalteration or construction work and whether plaintiff's work was part of a separate phase easilydistinguishable from the construction and alteration work" (1B NY PJI3d 2:217, at 1165 [2009]).
Here, plaintiff satisfies none of the Prats factors. Plaintiff was not employed by acompany that was carrying out a construction or alteration project. The company that employedplaintiff was retained solely to apply the protective film to the six windows in the lobbies. Toapply the film, the employees of the company cleaned the windows, cut the film to fit thewindows, pulled the liner off of the film, wet the back of the film, slid the film into place on theglass and used a squeegee to remove excess water from the film. To perform their task, the [*8]employees needed only a ladder or scaffold, a box cutter to cut thefilm, a spray bottle containing soap and water to clean the windows, and a squeegee. Theemployees of the company applied the film to the windows in one day, returning for one dayapproximately one month later to adjust portions of the film to improve the appearance of thefilm. The work performed by the employees of the company did not change the size or shape ofthe windows; the employees neither drilled nor cut any holes in the windows; they did notdisturb the frames of the windows; and they did not work on any portion of the building itself.Thus, the company that employed plaintiff did not make a significant physical change tothe configuration or composition of the building or structure and thus was not carrying out analteration project (see Joblon, supra; see also Munoz v DJZ Realty, LLC, 5 NY3d 747 [2005],revg 15 AD3d 363 [2005] [applying new advertisement to billboard does not changebillboard's structure and is more akin to cosmetic maintenance or decorative modification]).
Moreover, plaintiff's work was not ongoing and contemporaneous with the alteration workthat was being performed elsewhere on the job site by companies other than his employer. Thework on the project began in the summer of 2003 and was, according to a project manageremployed by the construction manager, "winding down" in April 2004 when plaintiff and hiscoworker reported to the job site to apply the film. As noted above, plaintiff was on the job siteonly two days, one day to apply the film to the windows and one day to adjust portions of thefilm on two windows to modify the appearance of the film. Plaintiff therefore failed to satisfy thesecond Prats factor.
The third Prats factor is whether the plaintiff was involved in performing alterationor construction work. As discussed above, plaintiff was not. His work involved applyingpolyester film to six windows and adjusting portions of the film on two windows. That workentailed cleaning the windows, cutting the film to fit the windows, pulling the liner off of thefilm, wetting the back of the film, sliding the film into place on the glass and using a squeegee toremove excess water from the film. Plaintiff's work required no tools other than a ladder orscaffold, a box cutter to cut the film, a spray bottle containing soap and water to clean thewindows, and a squeegee. Plaintiff made no significant physical change to theconfiguration or composition of the building. Rather, his work, both on the first day he was onthe job site and the day he returned to it, was akin to cosmetic maintenance or decorativemodification (see Munoz, supra [applying new advertisement to billboard doesnot change billboard's structure and is more akin to cosmetic maintenance or decorativemodification]; Czaska v Lenn Lease, 251 AD2d 965 [1998] [insulating windows bystapling sheets of plastic over them did not "alter" the windows within the meaning of the LaborLaw]). Moreover, plaintiff returned to the job site solely to adjust portions of the film on twowindows to modify the appearance of the film.
Lastly, plaintiff failed to satisfy the fourth Prats factor because his work was part ofa separate phase of the project that is easily distinguishable from the alteration work beingperformed elsewhere on the job site by companies other than his employer. Plaintiff applied thefilm to the windows in April 2004 when the project was "winding down," and reported to the jobsite to adjust the film approximately one month later. Plaintiff did not work on any other aspectof the project, and there is no evidence, indeed no suggestion, that other work on the site wascontingent upon the completion of plaintiff's work.
The majority concludes that plaintiff was engaged in "altering" the building, and writes that"the site hardening and security project was part of an overall capital improvement that included[*9]plaintiff's work as evidenced by the fact that his company,engaged as a subcontractor, was a member of the team involved in the alteration. Accordingly,we reject the dissent's and defendants' attempt to isolate the specific task plaintiff was engaged inat the time of the injury. Defendants' characterization of plaintiff's work as merely cosmetic isdispelled by the unchallenged evidence that bomb blast film changes the property of glass.Accordingly, plaintiff's employer was engaged to carry out a specific part of the alteration. It isalso significant that plaintiff was reinstalling the bomb blast film at the behest of an architect, aprofessional who would generally be a key player in an alteration project." As is evident, themajority does not discuss the Prats factors. Indeed, it does not even mention them.Whether the security enhancement project was part of a capital improvement project, whetherplaintiff's employer was hired as a subcontractor, and whether an architect requested thatplaintiff adjust the film plaintiff previously applied are irrelevant to the determinative questionon this appeal—whether plaintiff was engaged in "alteration" of a building or structureunder section 240 (1).
The majority tacitly concludes that plaintiff was engaged in "alteration" of a building orstructure because the "bomb blast film change[d] the property of glass." The majority errs,however, because the relevant test is whether the worker made "a significant physicalchange to the configuration or composition of the building or structure" (Joblon,91 NY2d at 465 [second emphasis added]). Under the majority's approach, the relevant testbecomes whether the worker made "a significant physical change to the configuration orcomposition of a component of the building or structure." Moreover, under the majority'sapproach, as long as the change to the component of the building is significant, it does not matterat all how insignificant the component is to the building or structure. Thus, if the facts otherwisewere the same but plaintiff had been called back to the building to adjust the film on only onesmall window, the majority's approach requires the conclusion that plaintiff was engaged in an"alteration" within the meaning of the statute. That conclusion is at odds with the concernexpressed in Joblon that "allowing every change in a structure to qualify as an alteration[would] give[ ] the statute too broad a reach" (id. at 464).[FN1][*10]
At bottom, the majority's conclusion rests on twoprinciples that have been rejected: that plaintiff was engaged in a protected activity because hiswork was an "integral and necessary part" of a larger project within the purview of section 240(1) (Martinez, 93 NY2d at 326), and that plaintiff was engaged in a protected activitybecause he was "working on a building" (Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430, 433 [2007]).
Accordingly, I would reverse the order on appeal, deny plaintiff's motion, grant defendants'cross motion and dismiss the Labor Law § 240 (1) cause of action.[FN2][See 2008 NY Slip Op 33173(U).]
Footnote *: In this regard, we note thatdefendants' biomechanical expert, who disputes plaintiff's account of the accident, does notchallenge the core assertion that the ladder buckled and fell. For this reason the expert's affidavitis insufficient to raise a triable issue of fact.
Footnote 1: The evidence in the record doesnot in any event establish that the application of the film to the glass changed the "property" ofthe glass. An employee of the construction manager testified that the film "would change theproperty of the glass," and plaintiff similarly testified that when the film is applied to the glass"the physical properties of the glass" are changed. Neither of these individuals was qualified torender an expert opinion as to whether the application of the film to glass changes the physicalproperties of the glass. This is unsurprising because both of these individuals are merely lay, factwitnesses. Plaintiff's window film safety expert did not aver that the application of the film toglass would change the properties of the glass. Instead, he asserted that the application of thefilm to glass "would alter the behavior of glass after impacted by explosive forces." Additionally,the promotional literature for the film states that the film "adheres to the interior side of thewindow [and the] polyester material acts like an invisible coat of armor, making the glasssignificantly stronger." No suggestion is made in the product literature that the application of thefilm to glass changes the physical properties of the glass.
Footnote 2: Because I would dismiss thesection 240 (1) claim on the ground that plaintiff was not engaged in a protected activity, I neednot decide whether a triable issue of fact exists regarding whether plaintiff was the soleproximate cause of his injuries.