In Simon v. Granite Bldg. 2, LLC, the plaintiff and his decedent wife arrived at a newly constructed office building to hang wallpaper. When they were unable to enter the front of the building, the decedent drove the van they were in through a fence into an as yet uncompleted parking structure adjacent to the building. Once on the second floor of the parking structure, the decedent attempted to stop the van but it slid on ice, broke through a cable guard rail and fell 32 feet. The plaintiff was able to exit the van before it fell, but the decedent fell to her death.
In dismissing the plaintiff's Labor Law §§ 240(1) and 241(6) claims, the Second Department found that wallpapering is not an enumerated activity under the Labor Law and that the work to be performed was not part of the larger construction construction project. While the Court acknowledged that it should not "isolate the moment of injury," it concluded that, "under the circumstances presented, the accident occurred before the plaintiff and his decedent had begun any work that conceivably could have been covered under these sections of the Labor Law" (citing Beehner v. Eckerd Corp.).