Worker Injured After Working Hours Was Not Entitled to Labor Law's Protections

In Feinberg v. Sanz, the plaintiff's decedent was employed as a helper on a building restoration project. After work hours, he apparently fell from a roof. Police and the managing agent noticed empty beer bottles on the roof when they arrived and an autopsy found the decedent’s BAC at .20.  Apparently, the overwhelming majority of testimony indicated that the site had been shut down for several hours. The only evidence to the contrary was hearsay from the decedent’s widow. The Appellate Division affirmed the dismissal of plaintiff's Labor Law 240 and 241(6) claims because the decedent was not engaging in a Labor Law activity by being on the site after it had been shut down for the night.  As to section 200, the Appellate Division held that the decedent was the sole-proximate cause of his accident, not because he was intoxicated, but because the absence of a safety device could not have been a proximate cause of the accident since the accident happened after work hours.  

The holding as to plaintiff's section 200 claim raises the question, had the accident occurred during work hours, would the decedent's intoxication nevertheless have been the sole proximate cause of his accident?