Last year we reported on a decision from the Appellate Division, Fourth Department that rejected plaintiff’s claims that his work on a billboard fell under the wide net of New York Labor Law § 240.  But the Court of Appeals granted leave to appeal to decide whether the modification of a billboard constitutes an “alteration” under the statute, and in a narrowly worded decision, recently reversed the Fourth Department.

In Saint v. Syracuse Supply, Co., Joseph Saint was changing the advertisement on top of an elevated billboard when he lost his footing and fell.  Saint sued Syracuse Supply Co., the owner of the billboard, alleging a violation of Labor Law § 240 due to a lack of safety railings along the billboard platform.  The Fourth Department dismissed Saint’s complaint, finding that applying an advertisement to a billboard does not constitute “altering” a building or structure as defined under Labor Law § 240.  Instead, the court held that the activity is “more akin to cosmetic maintenance or decorative modification,” and is therefore not a protected activity.

The Court of Appeals disagreed with the Fourth Department, finding that the change was more than cosmetic as it required a change to the structure of the billboard’s size and frame to make room for the new advertisement.  For example, the Court focused on Saint’s work to attach metal bolts and an extension to the billboard frame.

We note that the Court’s decision in Saint is not an expansion of claims that fall under the Labor Law.  In fact, the Court implicitly acknowledged that “cosmetic maintenance or decorative modification” are still not covered under the Labor Law.  Rather, the Court simply found that Saint’s work included structural alterations to the billboard which falls under Labor Law § 240.

Thanks for Steve Kaye for his contribution to this post and please write to Mike Bono for more information.