No. 101 Broggy v Rockefeller Group, Inc.

Laurence Broggy, a professional window washer, was injured in March 1999 while working on
the eighth floor of a 28-story commercial building at 75 Rockefeller Plaza. He was cleaning the interior surfaces of the windows while two co-workers cleaned the exterior surfaces. They came to an office where a large mahogany desk was pushed up against the window sill and Broggy decided to stand on the desk to clean the glass. He washed the upper sash, then raised the lower sash to let a co-worker back inside. Broggy was standing with one foot on the sill when the sash unexpectedly slammed shut.

He reacted by quickly pulling back his foot, and lost his balance when it struck a raised ledge on the
back of the desk. He fell backwards, striking his back on the edge of the desk. Broggy and his wife commenced this action against the building's owners, collectively referred to as Time Warner, and the building manager. Among other claims, Broggy alleged the defendants violated Labor Law § 240(1), which requires owners and contractors engaged "in the erection, demolition, altering, painting, cleaning or pointing of a building or structure" to furnish "scaffolding, hoists, stays, ladders ... and other devices" to give proper protection to workers.

Supreme Court granted summary judgment on the issue of liability to Broggy, rejecting the defendants' argument that window washing is not covered by the statute. The court said section 240(1) specifically enumerates certain activities, certain worker's activities, which are protected activities. And one of those is cleaning. And there's no modifying word as to cleaning, it doesn't have to be in an industrial capacity.... And it's also clear to me that it doesn't have to be cleaning in an outside capacity." Since Broggy's window washing "is the kind of work that is contemplated as having an elevation risk attached to it, then I think it is covered under the statute," the court said. It also held the cause of the accident was foreseeable, saying that "inside window washers as well as outside window washers face the problem or the foreseeable risk of having a window shut down in an abrupt fashion and causing them to arguably lose their balance, which is precisely what happened here."

The Appellate Division, First Department reversed the order and dismissed Broggy's claim, stating that section 240(1) "is limited to cleaning that is 'incidental to building construction, demolition
and repair work.'" It said, "Plaintiffs have identified no significant physical change to the premises to
which the interior window cleaning performed in this case was incidental; nor was such cleaning related to building construction, demolition or repair work so as to remove the activity from the category of routine maintenance and bring it within the ambit of Labor Law § 240(1)." Alternatively, the court said plaintiffs "failed to establish the need for any safety device affording protection from the effects of gravity in connection with the interior window cleaning at issue." Since Broggy did not allege that his cleaning "could not have been successfully performed from the floor...," it said, "there is no evidence from which this court could conclude that the injured plaintiff was exposed to an elevation-related risk protected by the statute...."