The result in this case in light of the activity performed seems harsh.  In the Appellate Division, First Department’s recent decision in Anderson v. Schwartz, the plaintiff injured himself after falling from a ladder.  He was removing a temporary sign that was attached the exterior of a one-story building.

Citing the New York Court of Appeals’ recent decision in Munoz v. DJC Realty, LLC (see post on case), the First Department concluded that this type of activity did not constitute a covered activity under Labor Law sec. 240(1).  The Court reasoned that the plaintiff’sremoval of the sign did not change the structure in anyway and constituted more of a comestic change.

Is this the type of analysis the Legislature contemplated when it enacted New York’s Scaffold Law?  What if the plaintiff was drilling the brick exterior to have the bolts attach this temporary sign to the building?  Would the result be different and wouldn’t that constitute an alteration (see the Court of Appeal’s definition of alteration in Joblon v. Solow)?  If so, doesn’t it seem silly that a worker falls within the ambit of the Labor Law for attaching the sign to the building because it constitutes an "alteration," but would not be covered for removing the sign?  Would the Court of Appeals conclude that even drilling holes into the building is not a significant enough alteration? 

Justice Ellerin in her dissent concluded that the Court of Appeals’ alteration threshold is a rather modest one.