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In a case of first impression, the Appellate Division, 1st Department, has ruled that a construction worker’s injury falls within the ambit of New York’s Labor Law �240(1) even though the accident occurred during his lunch break. The decision marks the first time the 1st Department has addressed liability for lunchtime injuries under Labor Law �240(1), commonly called the “scaffold law.” The court, however, limited the holding to the specific facts of this case, in which the plaintiff fell from the bridge where he ate. The bridge also served as a staging area for the workers. “Whether plaintiff was still on his lunch break or had finished lunch, eventually he would return to the [motorized] scaffold, which was stored on the bridge during lunch break, to do more pointing work,” Justice Joseph P. Sullivan wrote for the unanimous panel in Morales v. Spring Scaffolding, Inc., 5760. Plaintiff Alexander Morales worked as a foreman for Galicia Contracting, a fa�ade restoring company hired to repair an apartment building on West 68th Street in Manhattan. Galicia Contracting hired a subcontractor, Spring Scaffolding, to build a sidewalk bridge. Such metal-and-plywood “bridges” are a common sight at constructions sites in the city, serving as a roof for pedestrians and floor for construction workers. Morales claims that on Aug. 22, 2001, he ate his lunch while sitting on a bucket on the bridge. After he finished eating, a building superintendent told him a delivery had arrived. As Morales leaned against the bridge’s parapet wall to see what had arrived, the wall collapsed. He fell approximately eight feet and suffered numerous injuries, including a collapsed lung, five fractured ribs and herniated discs, which required lumbar-fusion surgery. Morales, 49, has not worked since the accident, according to his lawyer. The building superintendent disputed this version of the accident. He said Morales — six-feet-tall and approximately 300 pounds — sat on top of the bridge’s wall, falling to the ground when it gave way. Morales initiated the present claim against both Spring Scaffolding and the building’s owner, Premier Company. He alleged common-law negligence and violations of the state’s Labor Law. Following discovery, Morales moved for summary judgment on the issue of liability for his Labor Law �240(1) claim against Premier. Bronx Supreme Court Justice Yvonne Gonzalez denied the motion, finding that a factual issue existed as to whether Morales was on break or had already finished eating when the accident occurred. On Tuesday, the 1st Department reversed, granting Morales’ summary judgment motion as to Premier’s liability. The panel also partially granted Spring Scaffolding’s motion for summary judgment, dismissing Morales’ claims against it under Labor Law ��240(1) and 240(6). His claims under common-law negligence and Labor Law �200, which codifies the common-law claim, still stand. Sullivan found that the appellate divisions “have split on whether �240(1) applies to a lunch break accident.” The 3rd Department applied the statute in the case of a worker leaving a work site to go to lunch, he noted, citing Kouros v. State of New York, 288 AD2d 566. But the 1st Department had not addressed the issue until Tuesday. “In the factual context of this case, we conclude that Labor Law �240(1) applies to the lunch break accident,” Sullivan wrote. “As the record shows, the sidewalk bridge, where the lunch break was taking place, was used by the fa�ade repair workers as a staging area, for storing equipment and mixing cement and as an entryway onto the scaffolding.” Even if Morales had been eating when he fell, Sullivan wrote, he would have had to come back to that same spot when he finished and returned to work. Justices Angela M. Mazzarelli, George D. Marlow, Betty Weinberg Ellerin and James M. Catterson concurred on the ruling. Morales’ attorney, Mark H. Edwards of Gorayeb & Associates, said the decision sets a broad precedent. “It’s nice … to have a decision that you can use for the general proposition that the Labor Law applies to a lunch break,” Edwards said. Frank V. Kelly, of the White Plains, N.Y.-based Law Office of Ted M. Tobias, represented the building’s owner, Premier Company. He could not be reached for comment. Marcy Sonneborn and Alice Spitz of Molod Spitz & DeSantis represented Spring Scaffolding.

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