Case Summary : Rory Fox v. H&M Hennes & Mauritz, L.P., 922 N.Y.S.2d 139 (2d Dept. 2011) (Apr. 19, 2011).

Summary: Rory Fox v. H&M Hennes & Mauritz, L.P., 922 N.Y.S.2d 139 (2d Dept. 2011) (Apr. 19, 2011). The plaintiff’s employer was hired to replace light bulbs and ballasts/transformers in 78 overhead lighting fixtures which were 12 feet above the retail floor. Plaintiff was injured when he fell from a ladder while performing this work. The court held that the work being performed by the plaintiff was repair and not routine maintenance when viewed in light of the scope of the entire job. The ladder which the plaintiff was using was “old and wobbly”; therefore, the court held that there was a violation of §240(1) that was the proximate cause of the plaintiff’s injuries.

Practice Note: The third-party complaint for indemnification was dismissed because the third-party defendant was a facilitator, was not negligent, and did not have authority to supervise or control plaintiff’s work.