Rosini v 315 Assoc., LLC

[*1] Rosini v 315 Assoc., LLC 2006 NY Slip Op 50635(U) [11 Misc 3d 1080(A)] Decided on March 31, 2006 Civil Court Of The City Of New York, New York County Oing, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2006
Civil Court of the City of New York, New York County

MICHAEL ROSINI, Plaintiff,

against

315 ASSOCIATES, LLC, Defendant. 315 ASSOCIATES, LLC, Third-Party Plaintiff, COLONIAL ART DECORATORS, INC., Third-Party Defendant.



112437/03

Jeffrey K. Oing, J.

In this negligence action, plaintiff, Michael Rosini seeks a damages award for personal injuries he allegedly sustained from a fall while installing a shelf in a storage room in the course of his employment. At the time of the accident, third-party [*2]defendant, Colonial Art Decorators, Inc. ("Colonial"), a painting and decorating contracting business, employed plaintiff as a supervisor (Moving Papers, Ex. F, Rosini Dep., pp. 13-14, 20). Defendant/Third-party plaintiff, 315 Associates, LLC ("315 Associates"), is the owner and lessor of the premises.

Plaintiff asserts five causes of action: 1) actual and/or constructive notice of the dangerous and defective condition; 2) Labor Law § 200; 3) Labor Law § 240; 4) Labor Law § 241; and 5) violation of Rule 23 of the Industrial Code §§ 23-1.5, 23-1.7, 23-1.16, and 23-1.21 (Moving Papers, Ex. A).

Colonial, moves, pursuant to CPLR 3212, for an order granting it summary judgment dismissing the third-party complaint.

315 Associates, cross-moves, pursuant to CPLR 3212, for an order granting it summary judgment dismissing the complaint, and any and all cross-claims, or, in the alternative, granting it summary judgment in its third-party complaint against Colonial for common law and contractual indemnification.

The principle is well settled that to obtain summary judgment a movant must establish a cause of action or defense sufficient to warrant a court's directing judgment in its favor as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The record must clearly indicate that no material and triable issue of fact is present because summary judgment is a drastic remedy that should not be invoked where there is any doubt as to the existence of a triable issue, or when the issue is even arguable (Zuckerman v City of New York, 49 NY2d 57, 562 [1980]).

Discussion

Plaintiff claims that the work he was performing, the installation of a shelf, when he fell is covered by Labor Law 240(1) because it was an alteration to the premises. In that regard, plaintiff testified at his EBT that Roseanne Hughes, Colonial's owner, asked him to build a shelf in a storage room to place drop clothes (Rosini EBT, Moving Papers, Ex. F, at 25). Other than this request, no one gave plaintiff any instructions or supervision in the installation of the shelf (Id. at 28). Plaintiff testified that the storage room where he was to build the shelf was eight by ten feet in size and that the ceiling was approximately ten feet high (Id. at 23, 25). He testified that he used a six-foot wooden A-frame ladder, that he did not notice any holes or depressions in the floor tile where he placed the ladder, and that the ladder was stable (Id. at 29, 30). Plaintiff was attempting to place the stud six to seven feet high on the wall; the stud was either six or eight feet long and four inches high (Id. at 32). He was using a screw gun for the work, and estimated the weight of the screw gun to be five pounds (Id. at 43). Plaintiff could not remember if he had yet inserted any [*3]screws into the wall before he fell (Id. at 34).

Plaintiff described the accident as follows:

A. I went up the ladder, I put [the stud] up, I went to screw it and I couldn't reach, so I put my foot on the sink and that's the last thing I remember, boom.

Q. As you're going up the ladder just to get the bearing straight ... as you're going up, is your left foot the foot that was closer to the wall

A. Yes.

Q. as opposed to your right foot?

A. Yes.

* * *

Q. How many steps were on that ladder?

A. I think six.

Q. Okay. And where was your right foot when you made the move with your left foot?

A. I think on the third or the fourth.

Q. Your right foot was on the third or fourth step?

A. Yeah.

(Id. at 43-44).

Thus, plaintiff's testimony was that he could not reach where he was going to affix the stud while on the ladder so he placed his foot on the sink, and that the sink gave way and fell off the wall (Id. at 27). On the date of the accident, plaintiff weighed approximately 180 to 185 pounds (Id. at 35).

Assuming arguendo that plaintiff can maintain his claims in this action, to impose liability on 315 Associates for violations of the Labor Law and common-law negligence, the violations or negligence must be a proximate cause of the accident. The "sole proximate cause" exception precludes such claims where the injured party is solely responsible for the accident (Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 290-292 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; Misirlakis v East Coast Entertainment Props., 297 AD2d 312 [2d Dept 2002], lv denied 100 NY2d 637 [2003]).

Here, the testimonial evidence is clear plaintiff did not [*4]fall from the ladder, nor did he sustain his injury as a result of a defective ladder (see, e.g., Perrone v Tishman Speyer Properties, L.P., 13 AD3d 146 [1st Dept 2004; [six-foot A-frame ladder on which plaintiff was standing "became a little uneasy" and "shaky" and he fell down as he started to descend from the next-to-top step]; Kapovic v 450 Lexington Venture, 280 AD2d 312 [1st Dept 2001]; [fall from a ladder as a result of it being unsecured]; Acosta v 888 7th Ave. Assoc., 248 AD2d 284 [1st Dept 1998] [injury sustained when the ladder plaintiff was standing on collapsed]). Plaintiff's counsel's argument that "[p]laintiff was forced to attempt to place a ladder in a cramped storage space and to work around an improperly fixed sink, so that he used the sink to secure himself in reaching to perform the installation work" (Meyerson Affirm., ¶ 12) is unavailing given that he has no personal knowledge of the facts and that, more importantly, there is no support in the record for such an assertion. Indeed, plaintiff himself testified at his EBT to the contrary:

Q. Okay. Did anyone give you any instruction or supervision as to how to do this work [of affixing the stud]?

A. I - no.

Q. Other than Mrs. Hughes telling you this is what I would like to have done -

A. Right.

Q. - did anyone give you any instruction or supervision?

A. No.

(Rosini EBT, Moving Papers, Ex. F, pp. 27-29).

Rather, plaintiff's, who weighs about 180 to 185 pounds, inadvisable and unforeseeable act of placing his left foot on the sink to get closer to the wall was the sole and superseding cause of his injury (see, Egan v A.J. Constr. Corp., 94 NY2d 839 [1999]). In fact, no one had instructed plaintiff to use the sink as a means to get closer to the wall to install the stud. Indeed, the situation was not an emergent one such that the stud had to be installed immediately so that plaintiff's conduct of using the sink was a foreseeable consequence.

Under these circumstances, plaintiff's Labor Law §§ 200, 240, 241, and common-law negligence claims are dismissed. Nonetheless, were plaintiff's act not the sole and superseding cause of this injury, he would fare no better for the reasons that follow.

Labor Law § 240 [*5]

Section 240(1) of the Labor Law provides:

All contractors and owners and their agents ... who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Plaintiff's testimony clearly demonstrates that the work he was doing cannot be classified as work "in the erection, demolition, repairing, ... painting, cleaning or pointing of a building or structure." The question that remains is whether the work was in the "altering" of a building or structure.

The term "altering" has been interpreted to mean the making of a significant physical change to the configuration or composition of the building or structure (Joblon v. Solow, 91 NY2d 457 [1998]). The Court of Appeals held that the work the plaintiff was conducting in that case, installing an electric wall clock, "was a significant physical change to the configuration or composition of the building" (Id. at 465). Although noting the issue was a close question, the Court reasoned that:

Joblon did more than the routine act of standing on a ladder to hang a clock on a wall. Bringing an electrical power supply capable of supporting the clock to the mail room, which required both extending the wiring within the utility room and chiseling a hole through a concrete wall so as to reach the mail room is more than a simple, routine activity and is significant enough to fall within the statute.

(Id.). The Court found that the hanging of a clock in that case was a significant physical change to the configuration or composition of the building because of the significance of the work activity involved in installing the clock, which was not simple and routine.

On the other hand, in a case with facts virtually indistinguishable from this action, the Appellate Division, First Department, found that the work of installing a key box did not fall within the protections of Labor Law § 240(1) (Acosta v. Banco Popular, 308 AD2d 48 [1st Dept 2003]). There, plaintiff was asked to install a key box on the wall of a vault room of defendant's bank. The ceiling in the vault room was approximately 10 feet high. The key box was about two square feet. Plaintiff was instructed to place the box as close to the ceiling as possible. Even though nothing appeared to be defective with the ladder, and the floor upon which the ladder [*6]was placed was level and not slippery, as plaintiff prepared to mark the wall before any drilling or insertions, the ladder "'turned' and 'twisted'" to the right causing him to fall forward and over the top of the ladder (Id. at 49).

The First Department held that the work contemplated would not result in a significant physical change in the configuration or composition of the building (Id. at 51). In that regard, the First Department reasoned that the work was:

more akin to the hanging of a clock, which the Court of Appeals in Joblon, rejected as constituting an alteration. That a four-pound drill had to be used (to create holes one inch deep), as well as a chip hammer weighing approximately 10 pounds ... does not change the obvious: the installation of the duplicate key box was part and parcel of routine maintenance, not an alteration of the building.

(Id.).

Here, the work plaintiff claims he was asked to perform, installing a shelf for drop clothes, is akin to the work performed in Acosta. Such work would not bring about a significant physical change to the configuration or composition of the building. Nor does the work involve the type of complexity or significance the Court of Appeals emphasized in Joblon, i.e., of bringing an electrical power supply into another room by extending wiring and chiseling a hole through a concrete wall, so as to bring it within the meaning of section 240(1). As such, the work of installing a shelf in a storage room for drop clothes is but a simple, routine activity. Indeed, in that regard, the record clearly demonstrates that the work performed by plaintiff was not part of a larger alteration project, or was incidental to any other section 240(1) enumerated activity such that his work could be deemed to fall within the ambit of Labor Law § 240(1) (LaFontaine v Albany Mgt., 257 AD2d 319 [3d Dept 1999], lv denied 94 NY2d 751 [1999]).

Based on the foregoing, plaintiff's claim pursuant to Labor Law § 240(1) is dismissed.

Labor Law § 241(6)

Labor Law § 241(6) provides the following:

All contractors and owners and their agents ... when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

* * *

6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to [*7]provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work,..., shall comply therewith.

In order to recover under Labor Law § 241(6), plaintiff must allege that his injuries were proximately caused by a violation of a "concrete specification" of the Industrial Code (Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 505 [1993]).

Here, the complaint alleges violations of the Industrial Code §§ 23-1.5, 23-1.7, 23-1.16, and 23-1.21. 315 Associates and Colonial argue that plaintiff has no viable claim under Labor Law § 241(6) because no construction, demolition, or excavation work was being performed at the time of plaintiff's accident.

For the purposes of section 241(6), construction work is defined under part 23 of the Industrial Code, entitled "Protection in Construction, Demolition and Excavation Operations" (Nagel v. D & R Realty Corp., 99 NY2d 98 [2002]). Under the Code, construction is defined as "all work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" (12 NYCRR 23-1.4 [b][13]). The definition is construed consistently within a construction, demolition and excavation context (Id. at 103).

Here, the record is undisputed that there was no construction, demolition or excavation project occurring at the premises when plaintiff sustained his injury. As noted supra, plaintiff's work was no more than a simple, routine activity, which, standing alone, is outside the ambit of the definition of construction under section 241(6).

Accordingly, plaintiff's claim pursuant to Labor Law § 241(6) is dismissed.

Labor Law § 200

In order to prevail on a Labor Law § 200 claim, plaintiff must show that 315 Associates directed, supervised or controlled his activities at the time of the accident (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352 [1998]; Lakasinski v. First New Amsterdam Realty, LLC, 3 AD3d 302 [1st Dept 2004]). Here, the record gives no indication, nor does plaintiff's EBT testimony demonstrate, that 315 Associates in any way directed, supervised or controlled his work. Accordingly, plaintiff's claim based on section 200 is dismissed.

Actual or Constructive Notice

Nothing in the record indicates that 315 Associates had either actual or constructive notice of any defect with the sink at issue. Indeed, the record is devoid of any facts that there was a problem with the sink prior to plaintiff stepping on it. [*8]As such, plaintiff's claim based on actual or constructive notice is dismissed.

Accordingly, 315 Associates' cross-motion for summary judgment dismissing the complaint is granted, and it is dismissed. Colonial's motion to dismiss the third-party complaint is also granted. Upon service of a copy of this order on the appropriate Clerk, the Clerk is respectfully directed to enter judgment dismissing the complaint and third-party complaint.

This memorandum opinion constitutes the decision and order of the Court.

Dated: March 31, 2006

____________________________

HON. JEFFREY K. OING, C.C.J.