Kharie v South Shore Recored Mgt., Inc.

Kharie v South Shore Record Mgt., Inc. 2014 NY Slip Op 04738 Decided on June 25, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 25, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
PLUMMER E. LOTT
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2013-05809
(Index No. 16289/11)

[*1]Harriram Roy Kharie, respondent,

v

South Shore Record Management, Inc., doing business as South Shore Records Management, et al., appellants.

James R. Pieret (McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. [Robert W. Gifford and John P. Cookson], of counsel), for appellants.

Lever & Stolzenberg, LLP, White Plains, N.Y. (Terrence James Cortelli of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Dufficy, J.), dated March 14, 2013, which granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is affirmed, with costs.

On June 25, 2011, the plaintiff, an employee of nonparty Workforce Logistics Corp., was injured when he fell approximately 12 feet from one of the shelves he was in the process of dismantling at the defendants' warehouse. The shelving, which was being dismantled and reassembled in a different portion of the warehouse, was free-standing, and the shelves were connected in a tongue-and-groove fashion, some of which required the use of a hammer to separate the pieces. The plaintiff was not provided with any safety equipment and, at the time of the accident, was standing on the one of the shelves in order to disassemble the higher levels of the shelving unit.

The plaintiff commenced this personal injury action, alleging, inter alia, a violation of Labor Law § 240(1). He moved for summary judgment on the issue of liability on that cause of action. The Supreme Court granted the motion. We affirm.

Labor Law § 240(1) provides that:

"All contractors and owners and their agents . . . 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" (Labor Law § 240[1] [emphasis added]).

Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-[*2]related risks at covered work sites (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Lombardi v Stout, 80 NY2d 290, 295; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; McCoy v Kirsch, 99 AD3d 13). "Negligence, if any, of the injured worker is of no consequence" (Rocovich v Consolidated Edison Co., 78 NY2d at 513). In order for Labor Law § 240(1) to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.

The Court of Appeals has defined a structure as "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Joblon v Solow, 91 NY2d 457, 464 [internal quotation marks omitted]; see Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943; McCoy v Kirsch, 99 AD3d 13; Pino v Robert Martin Co., 22 AD3d 549; Sinzieri v Expositions, Inc., 270 AD2d 332).

Contrary to the defendants' contentions, the shelves at issue constituted a "structure" under Labor Law § 240(1), as they were composed of component pieces (metal grates and cross bars) attached in a definite manner (see Pino v Robert Martin Co., 22 AD3d at 552). Furthermore, at the time of the accident, the plaintiff was engaged in both alteration and demolition within the meaning of the statute. Demolition, for purposes of the statute, is defined under 12 NYCRR 23-1.4 (b)(16) (see Medina v City of New York, 87 AD3d 907, 908, citing 12 NYCRR 23-1.4 [b][16]), and specifically includes "dismantling" (see 12 NYCRR 23-1.4[b][16] ["(t)he work incidental to . . . the total or partial dismantling( ) of a building or other structure"] [emphasis added]). Alteration is defined as "a significant physical change to the configuration or composition of the building or structure" (Joblon v Solow, 91 NY2d at 465). By dismantling the shelves at issue, the plaintiff was both altering and demolishing the shelves.

The plaintiff established his prima facie entitlement to judgment as a matter of law by presenting undisputed evidence that he fell from a height while working at the defendants' warehouse, that the defendants failed to provide him with safety equipment, and that this failure was a proximate cause of his injuries. In opposition, the defendants failed to raise a triable issue of fact.

Accordingly, the plaintiff's motion for summary judgment was properly granted.

MASTRO, J.P., LOTT, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court