Telecommunications Wi‑Fi Cabling Is Not a Labor Law § 240(1) “Alteration,” and Public Service Law § 228 Does Not Shield Owners Outside Cable-TV Installations

1. Introduction

In Hearns v Blended Family LLC (2026 NY Slip Op 05367 [1st Dept Sept. 17, 2026]), the Appellate Division, First Department addressed whether a Verizon telecommunications field technician injured in a ladder fall while installing Wi‑Fi services in a mixed-use building could invoke Labor Law § 240(1) against (i) the building owner, Abeken Apartments LP (“Abeken”), and (ii) the commercial basement tenant operating a daycare, Blended Family LLC (“Blended Family”).

The plaintiff alleged he needed to run a cable from the daycare’s leased basement space to a telecommunications equipment room located in a separate, residential-side basement area controlled by the owner. He testified he drilled two holes through walls to route the cable and, while standing on a “building ladder” in the hallway drop ceiling area, the ladder shifted and fell.

The appeal centered on three intertwined issues:

  • Coverage: Whether the plaintiff’s telecommunications work (including drilling two holes to run cable) was “construction-related” activity—specifically “altering”—under Labor Law § 240(1).
  • Statutory shield: Whether Public Service Law § 228 (a statute limiting landlord interference with cable television installation) barred the owner from Labor Law § 240(1) exposure.
  • Risk allocation: Whether Abeken could obtain contractual indemnification from Blended Family under the lease, notwithstanding General Obligations Law § 5-321 and disputed facts about the owner’s potential negligence.

2. Summary of the Opinion

The First Department unanimously affirmed the order. It held:

  • Public Service Law § 228 does not bar the claim against Abeken because Verizon telecommunications work is not “cable television facilities” work governed by that statute.
  • Labor Law § 240(1) still does not apply because plaintiff’s work—described as drilling two holes to run a cable—was not “altering” or otherwise construction-related activity within the meaning of § 240(1).
  • Common-law negligence: summary judgment for plaintiff was properly denied as to Abeken due to fact disputes about whether the superintendent furnished the ladder.
  • Contractual indemnification: Abeken was entitled to conditional contractual indemnification from Blended Family, because the indemnity clause was triggered by work performed for Blended Family and was not void under General Obligations Law § 5-321 where the parties allocated risk through insurance; however, indemnity remained conditional due to unresolved factual questions regarding Abeken’s negligence.

The court also recalled and vacated an earlier decision and order of the First Department entered April 21, 2026 (248 AD3d 619 [1st Dept 2026]) in a procedural step referenced as decided simultaneously (M-3326).

3. Analysis

3.1. Precedents Cited

Abbatiello v Lancaster Studio Assoc., 3 NY3d 46 (2004)

Supreme Court had dismissed the § 240(1) claim against Abeken on the theory that Public Service Law § 228 precluded Labor Law liability. The First Department stated this was error “in light of the application of Public Service Law § 228” and cited Abbatiello v Lancaster Studio Assoc. for the proposition that the Public Service Law may be relevant where cable television installations are involved.

The key move in Hearns was narrowing the statutory shield: even if Abbatiello recognizes circumstances where § 228 affects a landlord’s exposure, § 228 is tied to “cable television facilities.” Because Verizon telecommunications work is not governed by the Public Service Law provisions invoked, Abeken could not rely on § 228 to avoid § 240(1) on that ground.

Mananghaya v Bronx-Lebanon Hosp. Ctr., 165 AD3d 117 (1st Dept 2018), lv dismissed 33 NY969 (2019)

This case supplied the First Department’s operative definition of “altering” under Labor Law § 240(1): the work must not be “simple, routine,” cosmetic, or decorative, and it must effect “a significant physical change to the configuration or composition of the building or structure,” including significantly changing how an important component of the building functions (even if the change is not permanent).

Hearns applied this framework to telecommunications cabling and treated the “significant physical change” criterion as the decisive filter.

Castaneda v Amsterco 67, LLC, 220 AD3d 406 (1st Dept 2023)

The court analogized plaintiff’s drilling to Castaneda, where drilling anchors into a façade to attach pest-control netting and adding spikes was held not to be an “alteration.” The comparison underscores the First Department’s consistent reluctance to treat limited drilling/fastening work—without a meaningful change in building configuration or function—as § 240(1) “altering.”

Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430 (1st Dept 2007)

Rhodes-Evans held that splicing fiber optic cable into a pre-existing cable box was not an alteration under Labor Law 240(1). In Hearns, the court used this precedent to place telecommunications/fiber work in a line of cases treating many wiring and cabling tasks as outside § 240(1) unless they rise to the level of significant physical change.

Great N. Ins. Co. v Interior Constr. Corp., 18 AD3d 371 (1st Dept 2005), affd 7 NY3d 412 (2006)

This authority supported enforcement of lease risk-allocation provisions despite General Obligations Law § 5-321, where sophisticated parties negotiate at arm’s length and allocate risk “essentially through the employment of insurance.” Hearns relied on it to validate the indemnity clause as a risk-shifting tool rather than an impermissible exemption from the lessor’s negligence.

Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153 (1977)

Quoted via Great N. Ins. Co., Hogeland supplies the doctrinal foundation: a clause is unenforceable if it effectively exculpates a landlord for its own negligence, but enforceable where it is a negotiated allocation of risk to third-party claims backed by insurance. Hearns treated the lease as falling in the latter category.

3.2. Legal Reasoning

(a) Public Service Law § 228: limited to cable television facilities

The First Department corrected Supreme Court’s statutory analysis. Public Service Law § 228(1) prevents landlords from interfering with the installation of “cable television facilities.” The court emphasized that “a telecommunications company such as Verizon is not governed by the Public Service Law,” citing Public Service Law §§ 213(1), 228. The plaintiff was “not installing cable television facilities,” therefore § 228 did not shield Abeken from Labor Law § 240(1) exposure as a categorical matter.

Importantly, this point did not revive the § 240(1) claim, because the court proceeded to decide the separate and ultimately dispositive question: whether the work itself fell within § 240(1)’s enumerated activities.

(b) Labor Law § 240(1): telecommunications cabling with minimal drilling is not “altering”

The court reaffirmed that § 240(1) protects workers only when performing the statute’s enumerated building-related activities (e.g., “erection, demolition, repairing, altering, painting, cleaning or pointing”).

Applying Mananghaya, the court characterized the plaintiff’s “self-described action of drilling two holes in order to run the cable wire” as insufficient: it did not effect a “significant physical change” to the building’s configuration or composition, nor did it significantly change the functioning of an important building component. The court buttressed that conclusion with the analogies in Castaneda and Rhodes-Evans, both of which denied “alteration” status to work involving drilling/attachment or fiber-optic cable tasks.

This reasoning effectively separates (i) the means of accomplishing work (drilling a small number of penetrations to route cabling) from (ii) the kind of project § 240(1) is designed to cover (construction-like changes to the building or its core systems). Even though the plaintiff worked at height and fell from a ladder—an archetypal gravity hazard—the statute does not apply unless the underlying task is covered activity.

(c) Negligence and factual disputes: ladder provenance matters

The court agreed that plaintiff could not obtain summary judgment on common-law negligence against Abeken because there were questions of fact about whether Abeken, through its superintendent, furnished the ladder that allegedly shifted. The superintendent disputed providing a ladder, creating a classic triable issue regarding control, provision of equipment, and potential negligence.

(d) Contractual indemnification: triggered, enforceable, but conditional

The indemnity clause was “triggered because the claim arose by reason of work performed at the behest of Blended Family.” Blended Family argued the accident did not occur “in or about the demised premises” and also argued the clause was void because Abeken controlled the accident area and ladder. The court rejected the voidness argument under General Obligations Law § 5-321, invoking Great N. Ins. Co. v Interior Constr. Corp. and Hogeland v Sibley, Lindsay & Curr Co. to emphasize enforceability where sophisticated parties allocate risk through insurance.

However, because there were unresolved questions about Abeken’s own negligence (again tied to ladder furnishing and the surrounding circumstances), the court affirmed only conditional indemnification—i.e., Abeken may obtain indemnity to the extent it is not found negligent (or depending on how the indemnity clause is ultimately applied in light of fact findings).

The court also rejected Blended Family’s attempt to avoid the “sophisticated parties” rationale by claiming it was not sophisticated, calling the argument “unpersuasive” and “in any event, unpreserved.”

3.3. Impact

  • Clarifies the boundary between cable TV and telecommunications for PSL § 228 defenses: Owners cannot reflexively invoke Public Service Law § 228 to bar Labor Law § 240(1) claims when the work is telecommunications/Wi‑Fi rather than “cable television facilities.” This narrows a potentially broad defense and forces owners to litigate § 240(1) coverage on the Labor Law’s own terms.
  • Reinforces a restrictive view of “altering” for cabling and minor penetrations: The decision signals that limited drilling to route wiring—without a significant physical change to the building’s configuration or important systems—will often be treated as outside § 240(1), even though the task may involve work at height and the use of ladders.
  • Maintains a pragmatic approach to commercial lease indemnity: The ruling continues First Department doctrine that indemnity/risk-shifting provisions are enforceable when they function as insurance-backed allocation of third-party risk between commercial parties, while preserving the public-policy limit by making indemnity conditional where the indemnitee’s negligence remains unresolved.

4. Complex Concepts Simplified

  • Labor Law § 240(1) (“Scaffold Law”): A New York statute imposing strict (often near-absolute) liability on owners/contractors for elevation-related risks only when the worker is engaged in enumerated activities like erection, demolition, repairing, or altering. A ladder fall alone is not enough; the underlying work must be covered.
  • “Altering”: Not every change counts. Under the First Department’s formulation, “altering” requires a significant physical change to the building/structure or a significant change in how an important component functions. Minor, routine work—even if it includes some drilling—may not qualify.
  • Public Service Law § 228: A statute aimed at preventing landlords from blocking installation of cable television facilities. The court treated it as inapplicable to Verizon’s telecommunications/Wi‑Fi installation.
  • General Obligations Law § 5-321: A statute that generally invalidates lease clauses that exculpate a landlord for its own negligence. Courts still enforce negotiated indemnity/insurance arrangements between sophisticated parties where the clause functions as risk allocation for third-party claims rather than a blanket negligence waiver.
  • Conditional indemnification: Indemnity granted now, but payable only if later fact-finding shows the indemnitee is entitled to it (often meaning the indemnitee was not negligent or liability is otherwise within the clause’s scope).

5. Conclusion

Hearns v Blended Family LLC delivers two practical takeaways for New York Labor Law and premises-liability litigation. First, it narrows reliance on Public Service Law § 228 by confining that statute’s protective effect to its cable-television context, not modern telecommunications/Wi‑Fi installation by a company like Verizon. Second, it reinforces that § 240(1) does not convert every ladder-related injury into strict liability; when the underlying work is routine cabling with minimal drilling and no significant physical change to the structure, it is not “altering” within the statute. At the same time, the court preserved ordinary negligence claims where factual disputes exist and reaffirmed the enforceability—though often conditional nature—of commercial lease indemnity provisions as insurance-backed risk allocation between contracting parties.