Plaintiff asserts that while scraping the building lobby to prepare it for painting, the ladder on which he was standing slipped and he fell to the ground. While he does not know what caused the ladder to slip, he claims that after he fell he noticed that the ladder did not have rubber feet. The scraping performed by plaintiff is encompassed within the term "painting" in section 240(1) (see, Perez v. Spring Creek Assocs., 265 A.D.2d 314; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916), and need not have been incidental to the other listed activities, such as construction, repair or alteration, to be covered (cf., Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327; Chapman v. International Bus. Machs., 253 A.D.2d 123, 127). Whether the ladder provided proper protection for purposes of section 240(1) is a question of fact for the jury (see, Benefield v. Halmar Corp., 264 A.D.2d 794, 795). It was also error to dismiss plaintiff's section 241(6) claim. Specific standards that would apply here if plaintiff's testimony were credited are found in 12 NYCRR 23-1.21(b)(3)(iv), which provides that a ladder shall not be used "[i]f it has any flaw or defect of material that may cause ladder failure" (see, Otero v. Cablevision of N.Y., 186 Misc.2d 651, 658). We have considered and rejected plaintiff's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.