Last week, the New York Court of Appeals granted leave to appeal in Broggy v. Rockefeller, Grp., Inc., which concerns the interplay between commercial cleaning of interior windows and the application of Labor Law § 240(1). The plaintiff in Broggy injured himself after falling from a desk while performing his duties cleaning interior windows in a commercial building. The desk was merely 3-feet off the ground, and the plaintiff could have cleaned the windows from the floor. Regarding "cleaning" as one of the activities set forth under § 240(1), the Appellate Division, First Department has held that cleaning can be a protected activity when it is incidental to building construction, demolition, or repair work. The Court of Appeals later clarified the point and defined the scope of the statute to include activities that, while not performed at a construction site, involve “making a significant physical change to the configuration or composition of the building or structure” so as to constitute an alteration within the meaning of the statute.

The First Department granted the owner of the commercial building’s summary judgment motion, holding that the plaintiff had identified no significant physical change to the premises to which the plaintiff was cleaning the interior windows. It also concluded that the cleaning was not related to construction, demolition, or repair work. Additionally, the Court concluded that, even if case law could be interpreted to hold the statute’s applicability to incidental cleaning of interior windows, the plaintiff did not demonstrate that any protective device set forth in the statute could have afforded the plaintiff protection for the gravity-related accident — i.e., falling off the desk when he could have washed the windows from the floor.

It is unclear whether the Court of Appeals granted the motion for leave to appeal to clarify the definition of "cleaning" as set forth in § 240(1) or whether it will address the First Court’s observation that the plaintiff could not demonstrate that any protective device would have afforded him protection. The Court recently addressed the type of gravity-related work § 240(1) contemplates, and might use this appeal to reinforce its prior holdings. See Outar v. City of New York; Toefer v. Long Island R.R..