Third Department Finds Question of Fact As to Whether Work Was "Alteration" Or "Simply, Routine Activity" Within The Meaning of The Labor Law

In Gunderman v. Sure Connect Cable Installation, Inc., the plaintiff was upgrading a customer's cable service for Time Warner Entertainment when he was struck by a steel cable and fell from his ladder sustaining serious head injuries.  After finding that the telephone pole on which the plaintiff was working was a "structure" within the meaning of the Labor Law, the Third Department turned its analysis to whether the upgrade of cable service being performed by plaintiff was an "alteration," which requires a "significant physical change to the configuration or composition of [a] building or structure,"  or a "simple, routine activity."  While alteration is a Labor Law protected activity, routine tasks are not.  Here, the Court found that upgrading the service required, among other things, replacing a "drop line" with a new cable that was capable of transmitting more data, performing certain indoor wire work and configuring the customer's computer. The details of this work, however, including "the actual manner in which the service upgrade was to be accomplished," were lacking in the Record.  As such, the Third Department reversed the dismissal of the plaintiffs' Labor Law § 240(1) claim, finding that "Absent a more detailed description of the tasks required to complete the requested upgrade," the Court was unable to determine if the plaintiff's work constituted an alteration within the meaning of the Labor Law.

It is also notable that the Third Department affirmed the dismissal of a contractual counterclaim against the plaintiff, who was a subcontractor, finding that the hold harmless provision in his subcontract agreement did not constitute an express waiver by him of his Labor Law § 240(1) claim.

Lastly, with respect to Time Warner's contractual indemnity claim against its contractor, Sure Connect, the Court found that Time Warner's "limited oversight" of the upgrade work was the type of "general supervisory control" that was insufficient to impose liability against Time Warner for active negligence.  As such, Time Warner was entitled to contractual indemnification from Sure Connect.