Romero v Verizon New York Inc.

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Romero v Verizon New York Inc. 2012 NY Slip Op 32600(U) October 12, 2012 Supreme Court, New York County Docket Number: 113600/2008 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNEDON 1011512012 [* 1] Index Number : 113600/2008 vs VERIZON NEW YORK Sequence Number : 005 I SUMMARY JUDGMENT Answering Affidavits - Exhibits [* 2] -against- For Third-Party Defendant: Wilson, Eiser, Moskowilz, Edclmaii & Dicker L,l ,I 3 (iannclt Drive White I lains, N Y 10604 Papers considered in review of thc motion and cross motions: Notice of Motion . . . . . . . . . . . . . . . I Notice of Cross Motioii . . . . . . . . . . 2 Noticc of Cross Motion . . . . . . . . . . 3 hffs in O p p . . . . . . . . . . . . . . . . ..4-9 IION. SA1. T A W SCAIU ULlA. 1.: In this action to recover damages [or personal injuries, defendant Verizon New Y orlc Tnc. ( Veri~on ) imves for suiiiinary judgincnt dismissing the complaint, third-party defendant Dynaserv Tnduslrics, Inc. ( Dyiiascrv ) cross-moves for sumimry judgment 1 [* 3] disinissing the complaint, aiid plaintiff Ruth Roinero ( Romero ) cross-moves for partial summary judgment on the issue of liability irxider Labor TAW $24O(1). On Jaiiuary 30, 2008, Komero, a Ilynaserv emnployec, fell from a laddci- while pcrrforming work at Verizon s premises located at 228 East S6+ Street in Manhattan. Dynascrv was uiidcr contract with Verizoii to perform certain janitorial type work at Vcrizon s premises. Romcro coi-nmcnced this action seeking to rccover damages rot-the injuries she sustained as the r w d t of Iicr fill, alleging violations of Labor Law $6200, 240( I ) and 24 1(6) and a iiegligericc claiin2 According to Roiiiem s oxamination before trial testimony, she began working at the subjcct Verizon prcinises as a Dyiiaserv employee in 2000. Hcr .job responsibilitics includcd cleaning the garbage, vacuuming, sweeping, mopping and cleaning the strccts outside of the prcinises. She was the lead person in charge of the building for Dynaserv. As part of her role as lead person, she was responsible for making sure that there were no burnt light bulbs at the building, and i l there were, slic would change them. Komero explained that several days prior to her accident, Verizon employee Roy Beauchamnp ( Beauchamp ) asked hcr to change thc light bulbs in the frame room on the first floor ol the building because Vcrizoii was going to be clmiging the ballasts. Slic had changed the light bulbs in that room 011 prior occasions. She explained that wlicn she Pursuant to stipulation dated Juiic 25,20 12, Dynascrv withdrew that portion of its motion seeking dismissal orthc third-party complaint and Verizoii witliclixw its opposition to s m e . 2 Romero has siiicc withdrawn her Labor Law $24 I(6) claim 2 [* 4] would changc a bulb, and the liglit would still not turn on, slic would tic: a red tag around the bulb as a way orindicating to Verizon that the ballast needcd to be changed. Roinero told her supervisor, Frank O Malley, that she was going to change tlic light bulbs and he told licr to coordinatc with her co-worker, Maria. On the moriiing of her accident, she had plaiiiicd to change llie bulbs with the help ofMaria, who shc had asked to come in to work by 1O:OO a.m. Maria would usually hold the rolling ladder while Romcro climbed up to change the bulbs. Maria did not arrive by 1O:OO a m , so Roinero decided to change the light bulbs hersell: She was in the process of tying a rcd flag around a bulb that would not turn on, when die f cll from thc ladder. 13caiichainp, a Verizon watch cngineer, testificd zit an examination bdore trial that he was responsible for maintaining and repairing air conditioning, plumbing and electrical such as ballasts. He explained that Dynascrv was not responsible for doing allything further if a light bull:, did not turn 011. Ile inaintaiiied that he told Roinero that Dyiiascrv had to change thc bulbs and whatever bulbs wcrcn t working, then we would come in and change the ballasts. He h e w that Roiiiero would place red flags on the lights that woiild not turn on, but he had never directed her to do so. IIc cxplained that he was not aware thc Roiiiero was using a rolling ladder, that she coufd haw trsed an A-fi-ame ladder to do the job, arid lie did not instruct her on how lo use a rolling ladder. According to Dynaserv rnanagcr Juan Diaz, Dynaserv was responsible for providing ladders for light bulb maintenance under its contract with Verizon. Further, 3 [* 5] Llyiiaserv inanager Frank O Malley ( O Mallcy )explained that it w a s proper practice to have a sccoiid person hold a rolling ladder. Koiiicro did not inform him that slic was going to climb the rolling laddcr by licrself, and she was not ;iuthorizcd to climb a rolling ladder by hersclf cven if she was askcd to do so by a Verizon employee. Verizon now imovcs f or suininary judgment dismissing the complaint. Verizori argucs that ( 1 ) Romero s accident does not fall within the protection of Lahor TAW $240(1) becausc slic was not involved in construction or renovation activity at the time of her Fdl; and (2) Roincro s claiins for violation of Labor L,aw 5200 and negligelice must bc dismissed because Vcrizon did not direct or supervise 1Coinero s in.jury-causing activity . I Iyaiiscrv cross-moves for summary .judgiiient dismissing the complaint, arguing that Romero s claiins do not fall within the protection ofthc Labor Law because she was not involvcd in construction or renovation activity at the time of hcr fdll. Romcro cross-moves for partial summary judgment on the issue of liability under Labor Law $240( 1). Koinero argucs that she was performing repair work, an aclivily covered by Labor T,aw $240( I), and not routine maiiitcna~icc the time of licr at accident. Specificnlly, she wax identifying which light fixtures wcre inoperable and required repair. She ~iiaiiitains absolute liability must be placed on Verizon for that failing to lirrnish her with an adcquatc safety device while she was pcrforming repair work. 4 [* 6] Discussion Labor 1,aw $240( I ) imposes absolute liability on bui lding owners, construction contractors and their agents with regard to elevation-related risks to workers at construction sites. Sep Rocbiguez v. Foresf City Joy SI. A,sLsocs., A.D.2d 68 ( lSt 234 Jlcpt. 1996). lhe statute was designed to prcveiit those types of acciileiits in which tlic protcctive devicc proved inadequatc to shield tlic injured worker froni liarin directly flowiiig froiii tlic q~plication the for orccof gravity to an object or person. See Luovgp v. of City qf New Ywk, 72 A.11.3d 609 ( ISt Dcpt. 20 lo). In order to be eiititlcd to tlic statutory protcction, a worker must establish that he or she sustained iii.juries while engagcd in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. Rhodc~s-Evuns l I I CJwlseu LLC , 44 A.D.3d 430, 432 (1 Dcpt. 2007). v. Whether a plaintiffs work coiistitutes protectcd activity under I .abor Law $240( 1 ) dcpcnds on tlic full coiitcxt of the plaintiffs work. See Fitzpntrick v. Stute c f A J ~ w I ork, 25 A.11.3d 755 (2 Dcpt. 2006). Here, the court h d s that when Koinero fell slit: was the in the process of performing work in a non-construction and lion-renovation context. Roinero was not hired to perform, nor was she pcrforming any erection, demolition, repairing, altering, painting, cleaning or pointiiig at Verizon s premises. Rather, she was perforiniiig work that shc liad donc on iiiany prior occasions pursuant to Verizon s contract with Dynaserv. Dyiiaserv was responsiblc for general iiiaintenaiicc at Verizon s premises, including light hul b maintenance, and Roinero was in the process of cliitnging 5 [* 7] light bulbs at tlic time o r her hill. She was not attempting to undertake any hrther electrical work or perform any rcpairs at the time of'her fall, Rather, she was in the process of cliangiiig light bulbs and then, by tying a red flag around a light bulb, was nicroly indicating to Vt-limn that a ballast rieeded to be cliaiigcd on the particular liglitbiilb, a task slic had performed inany times in the past. The general context of licr work did riot encompass activity protected uiidcr the statute. See generally Picaro v New York Convention (-'/7~, Dcv. Cor+>., A.LI.3d 5 I 1 (1" Dept. 20 12); Dcoki v.Ahner Props. 07 (lo,, 48 A.D.3d 5 J 0 (2'ld Dept. 2008); Sirnpson v O'Sheu, 20 I O NY Slip Op 32 173U (N.Y. Sup. Ct. SulToll; Co., July 8, 2010). As such, Roincro's claims undcr Labor $240( 1 ) are di si11i s sed I Furthermore, Koiiicro's Labor Law $200 and negligence claims iiiust be dismissed. To be held liable undcr Labor Law $200 and for common-law negligence wlicii the method and inaiiiicr ofthe work is at issue, it iiiust be shown that thc party to be charged liad the authority to siipervise or control tlic perforinance of the work. See G'a,sy~e,sv. State o New Y w k , 59 A.D.3tl 666 (2'ldDcpt. 2009). In addition lo tlic courl's finding f abovc that Roinero's work was performed in a non-construction and lion-renovation context thcrcby eliminatiiig the protection o l the Labor Law, the court also finds that there is no evidence that Verizoii exercised actual supervision or control ovcr tlic work in the course of which Roiiiero was injured. See generally Phi/L@v 525 E 80th St. C'onu'ominiurrz, 93 A.D.3d 578 ( I '' Ilept. 20 12); C~onzalez [JPS, 249 A.JI.2d 2 10 (1" v. [* 8] are dismisscd. In accordance with the foregoing, it is hereby Olil)Elan that defendant Verizon New York Inc. s motion for sumniary judgment dismissing the complaint is granted and the complnint is dismissed; and it is liirther OKI )I1KED that third-party dchidant Dynascrv Industries, lnc. s cross-motion for summary +jirdginent disiiiissing the complaint is granted and the complaint is dismissed; and it is lirrtlier OK1)EKED that plaiiitifI Ruth Roiiicro s cross motion lor partial summary judgineiit on the issuc of liability uiidcr Labor Law (j240(1) is denied; and it is fLirthcr OlWEWL) lhat the Clerk of the Court is directed to enter judgiiieiit accordingly. I his constitutes the decision and order or the Court. Dalcd: Ncw York, NY October) ,2012 7

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