Kortright v Hong Kong Food Servs., Inc.
Annotate this CaseDecided on October 5, 2004
Supreme Court, Tompkins County
PATRICK KORTRIGHT, Plaintiff,
against
HONG KONG FOOD SERVICES, INC., Defendant.
2002-1114
William J. Hathaway, Esq.
Alexander & Catalano
115 East Jefferson Street
Syracuse, NY 13202
Matthew E. Whritenour, Esq.
Mitchell, Goris, Stokes & Knych
300 South State Street
One Park Place, Suite 624
Robert C. Mulvey, J.
Defendant has moved pursuant to CPLR 3212 for summary judgment and dismissal of the plaintiff's complaint in this action for personal injuries brought under provisions of the Labor Law. Plaintiff has submitted papers in opposition to the defendant's motion.
Plaintiff suffered personal injuries on or about February 22, 2002, while cleaning the hood, fan and exhaust vents over a stove in the kitchen of the defendant's restaurant. Plaintiff was working as an employee of Fat Free Systems, Inc. at the time of the accident. Defendant, Hong Kong Food Service, Inc., had hired Fat Free Systems, Inc. to clean grease and smoke residue from its hood, fan and exhaust vents on numerous previous occasions and had done so again on this occasion. Plaintiff and his co-worker/supervisor, Jesse Gallipeau, brought their own equipment and mixed a caustic solution of water and sodium hydroxide for use in cleaning the hood, fan and vents. The record indicates that after the workers sprayed the hood with the caustic solution and with the floor beneath him still being wet and slippery, the plaintiff placed a two-foot step ladder under the hood and climbed it so that he could polish the hood. While the plaintiff was standing on the step ladder polishing the hood, plaintiff alleges that the ladder slipped out from under him and he fell to the floor. As the plaintiff fell, the boot on his right foot went into and became lodged in a bucket of caustic solution that had been placed next to the ladder. The plaintiff alleges that he ended up seated on the floor and the caustic solution had spilled all over the floor. Mr. Gallipeau had to pull the bucket off of the plaintiff's right foot. Plaintiff suffered chemical burns to his right foot as a result of the accident.
In his complaint, the plaintiff brought claims against defendant based upon Sections 200, 240 (1) and 241 (6) of the Labor Law. Plaintiff has formally withdrawn his claims under Sections 200 and 241 (6) of the Labor Law and is now proceeding against the defendant only under the provisions of 240 (1).
In support of its motion herein, the defendant has offered an accident report of the plaintiff's employer which was prepared by the office manager and was signed by Mr. Gallipeau, the plaintiff's co-worker/supervisor, which indicates that the plaintiff was injured when the plaintiff stepped off of the ladder into a pail of caustic water and that the accident was caused by the plaintiff not looking before stepping. Defendant has submitted the affidavit of Thomas Boylan, the office manager of the plaintiff's employer, Fat Free Systems, Inc., who has alleged that he inspected the ladder in question on the day after the accident and found that it was not broken or damaged and further stated that the plaintiff did not follow company policy or procedure by failing to mop the floor under the hood before starting to polish the hood. Defendant has also offered the affidavit of Warren Clough, a forensic chemist, who inspected the clothing that was worn by the plaintiff on the day of the accident. Upon his inspection, he did not find any chemical residue on the seat of the plaintiff's pants or any substantial amount of residue on other parts of the plaintiff's clothing other than the right pant leg. He also noted that [*2]there is no evidence in the record of any burns to the plaintiff's uncovered hands and fingers. Given such findings, Mr. Clough has offered is opinion that the accident could not have occurred as the plaintiff has testified that it did. In addition, the defendant has submitted the affidavit of Yan Yan Zhang, its president, who has alleged that the hoods and vents are cleaned on a regular basis every three or four months, that Fat Free Systems, Inc. specialized in this type of cleaning and was used regularly by his company. He also stated that the defendant did not provide any equipment for the cleaning work and did not supervise or direct the work done by the plaintiff.
Defendant, Hong Kong Food Service, Inc., seeks summary judgment and dismissal of the plaintiff's complaint in the grounds that 1) the provisions of Labor Law 240 (1) are not applicable in this instance because the plaintiff was engaged in routine maintenance and not a covered activity, 2) that the provisions of 240 (1) are not applicable because the accident was unrelated to the forces of gravity and 3) the plaintiff's injuries were caused solely by the plaintiff's recalcitrance and/or negligence and there is no evidence of a defect in the ladder. Defendant asserts that because there is evidence that this type of cleaning of the hood and vents was routinely done, the work being performed by the plaintiff constituted routine maintenance and did not qualify as a protected activity under 240 (1). Defendant contends that the record herein also demonstrates, as a matter of law, that the plaintiff did not fall off the ladder and onto the floor, but rather that he stepped into a bucket of caustic solution as he stepped off of the ladder and, as a result, the injury was not gravity related. Lastly, defendant argues that the plaintiff's own conduct was the sole proximate cause of the plaintiff's injury since he was negligent in placing the ladder upon the slippery floor, he failed to follow his employer's procedure for performing the work and he has offered no evidence that the ladder was defective.
The defendant has cited the case of Williams v. Perkins Restaurants, Inc., 245 AD2d 1128 (Fourth Dept. 1997) in support of its claim that the work being performed by the plaintiff in this instance amounted to "routine maintenance" which was not the type of "cleaning" that is afforded protection under the provisions of 240 (1). Although the work being performed in the Williams case is nearly identical to the work being performed by the plaintiff in this action, the Third Department has not adopted the interpretation that routine cleaning in a non-construction or non-renovation context is not protected by the statute. (See, Chapman v. International Business Machines Corp., 253 AD2d 123; Vernus v. Zilka, 241 AD2d 885). Indeed, in Chapman, the Third Department specifically referred to the Williams decision, as well as other similar decisions from the Second and Fourth Departments, and declined to "impose or recognize a limitation on commercial cleaning which requires that it be performed in a construction or repair context to fall under Labor Law Section 240 (1)". Chapman, supra at page 127. Here, the work being performed by the plaintiff cannot be characterized as routine household cleaning, such as window washing in a single cooperative apartment (See, Brown v. Christopher Street Owners Corp., 87 NY2d 938), but rather the record indicates that it was a specialized form of cleaning being done in a commercial business building. Moreover, the Court is not persuaded that the more recent "routine maintenance" cases from the Third Department, such as Goad v. Southern Electric International, Inc., 304 AD2d 887 and Robertson v. Little Rapids Corporation, 277 AD2d 560, are controlling in this instance, since in neither of those cases did [*3]the maintenance involve any form of "cleaning" which is specifically included as a protected activity in the statute. Under the circumstances presented and this Court's view of the current law in the Third Department, the Court finds that the work being performed by the plaintiff in this instance is a protected activity under the provisions of Labor Law Section 240 (1).
The defendant also seeks dismissal of the complaint on the ground that the provisions of Labor Law Section 240 (1) are not applicable because the injury was not due to an elevation related risk and /or was not caused as a result of the forces of gravity, citing Rocovich v. Consolidated Edison, Co., 78 NY2d 509 and Ross v. Curtis-Palmer, 81 NY2d 494. Defendant argues that the proof offered in support of its motion for summary judgment, including the employer's accident report and the affidavit of forensic chemist Warren Clough, establishes, as a matter of law, that the accident did not occur as the plaintiff testified at his examination before trial and that the plaintiff merely stepped off the ladder and into a bucket of caustic solution without looking. Although the proof offered by the defendant certainly raises questions of fact as to how the accident occurred and raises credibility questions, the Court is not persuaded that the defendant's proof is sufficient to overcome the plaintiff's sworn testimony and prove, as a matter of law, that the accident occurred as the defendant contends that it did. The Court notes that the accident was apparently not witnessed by anyone else and the circumstantial evidence regarding the location of chemical residue on the plaintiff's pants does not necessarily refute the plaintiff's testimony that he fell off the ladder, but goes more to his testimony that he ended up on the floor in a seated position and that the seat of his pants was wet from solution.
Lastly, the defendant contends that it is entitled to dismissal of the plaintiff's complaint on the ground that the plaintiff's conduct was the sole proximate cause of the accident, citing Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280. Defendant argues that the plaintiff himself placed the step ladder from which he allegedly fell and that his placement of the ladder on a wet or slippery floor was contrary to company policy or procedure. Plaintiff's counsel points out that the plaintiff testified that the ladder slipped out from underneath him and that the wooden ladder did not have rubber feet or grip tape on the bottom of its legs or the steps. Here, there is evidence that the ladder slipped or otherwise failed to perform its function to support the plaintiff which is sufficient to make a prima facie showing of a statutory violation (See, Squires v. Robert Marini Builders, 293 AD2d 808). Defendant's proof raises questions of fact as to whether there was a statutory violation and/or whether the plaintiff's own conduct was the sole proximate cause of the accident, but defendant's proof is not sufficient to establish, as a matter of law, that the plaintiff's conduct was the sole proximate cause of the accident. Further, the defendant's proof does not establish a recalcitrant worker defense, since there is no evidence that the plaintiff deliberately refused to use a safety device that was available on the job site. (See, Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555; Morin v. Machnick Builders Ltd., 4 AD3d 668). Moreover, "where a plaintiff is injured in a fall from a ladder which is not otherwise shown to be defective, the issue of whether the ladder provided the plaintiff with the proper protection required under the statute is a question of fact for the jury." Benefield v. Halmar Corporation, 264 AD2d 794, citing Rice v. PCM Development Agency Company, 230 AD2d 898. [*4]
Accordingly, for the reasons set forth above, it is
ORDERED, that the defendant's motion for summary judgment and dismissal of the plaintiffs's complaint is hereby denied.
This shall constitute the Decision and Order of the Court. No costs are awarded on the motion.
Dated, October 5, 2004.
_________________________________
ROBERT C. MULVEY, J.S.C.
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