| Gherardi v City of New York |
| 2008 NY Slip Op 01860 [49 AD3d 280] |
| March 4, 2008 |
| Appellate Division, First Department |
| Robert Gherardi et al., Respondents, v City of New York etal., Defendants, and Harris Corporation et al., Appellants. |
—[*1] Alexander J. Wulwick, New York City, for respondents.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered January 10, 2007,which, insofar as appealed from, denied defendant contractors' motion for summary judgmentdismissing the Labor Law § 241 (6) cause of action, unanimously affirmed, without costs.
A contractor's obligation under the statute is only "when constructing," which is defined in12 NYCRR 23-1.4 as including the same activities enumerated under Labor Law § 240 (1),and plaintiff was not "constructing, demolishing or excavating" because the ramp was not in hiswork area.
Even if, arguendo, defendant contractors' argument regarding the nature of plaintiff's workmay be raised at this juncture, such work, involving an extensive project for the installation ofwiring on four floors of a public high school building, effected a significant physical change andwas therefore an "alteration" (see Joblon v Solow, 91 NY2d 457, 465-466 [1998];Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998]). Although the accidentoccurred on an entrance ramp used for worker ingress and for bringing in materials, and notwhere plaintiff's work was actually being conducted, the protection of the statute extends to sucharea (see Smith v McClier Corp., 22AD3d 369, 371 [2005]; Whalen v City of New York, 270 AD2d 340, 342[*2][2000]), and it is not necessary for the offending instrumentality tohave been erected for worker use. Concur—Nardelli, J.P., Williams, Sweeny andCatterson, JJ.