Hakes v Tops Mkts., LLC
Annotate this CaseDecided on December 17, 2004
Supreme Court, Niagara County
Michael Hakes, Plaintiff,
against
Tops Markets, LLC d/b/a WILSON FARMS NEIGHBORHOOD FOOD STORES, and THE RANDALL BENDERSON 1993-1 TRUST, Defendants.
111704
CELLINO & BARNES
Attorneys for Plaintiff
By: Gerald W. Schaffer, Jr., Esq., of Counsel
DIXON & HAMILTON, LLP
Attorneys for Defendants
By: Dennis P. Hamilton, Esq., of Counsel
John M. Curran, J.
Plaintiff has moved for an Order granting partial summary judgment as to the issue of liability on his Labor Law § 240(1) cause of action against the owner of the premises in question, defendant, The Randall Benderson 1993-1 Trust ("Benderson"). Defendants have cross-moved for an Order granting summary judgment dismissing the Complaint. In support of the motion, plaintiff has submitted his Notice of Motion dated October 28, 2004, the Affirmation of Gerald W. Schaffer, Jr., Esq., affirmed under penalties of perjury on October 25, 2004, with exhibits, the Affidavit of Michael Hakes, sworn to on November 17, 2004, with exhibit, and the Reply Affirmation of Gerald W. Schaffer, Jr., Esq., affirmed under penalties of perjury on December 8, 2004. In opposition to the motion, and in support of the cross-motion, defendants submitted the Notice of Cross-Motion dated November 11, 2004, the Affidavit of Dennis P. Hamilton, Esq., sworn to on November 11, 2004, with exhibits, and the Reply Affidavit of Dennis P. Hamilton, Esq., sworn to on December 15, 2004. On December 16, 2004, the Court heard oral argument on the motions. For the reasons set forth below, plaintiff's motion is granted and defendants' motion [*2]is granted in part as to all causes of action except those under Labor Law § 240(1).
Plaintiff does not oppose defendants' motion to dismiss the causes of action under Labor Law §§ 200 and 241(6). Accordingly, those causes of action are dismissed.
Plaintiff argues that he is entitled to partial summary judgment under Labor Law § 240(1) as a matter of law because: (a) at the time of his fall, plaintiff was engaged in an activity protected under the statute; (b) at the time of his fall, plaintiff was working at an elevated work site; and (c) at the time of his fall, plaintiff was not provided with any safety devices that would have provided him protection from the gravity-related injury he suffered. Defendants maintain that they are entitled to summary judgment dismissing the Complaint because plaintiff was engaged at the time of his fall in "routine maintenance" as opposed to the protected activity of "repair," and that there can be no liability under Labor Law § 240(1) when there is no showing that the equipment involved in the fall from an elevated height is defective.
Significantly, all parties to this action have moved for summary judgment on liability thereby claiming that there are no disputed issues of material fact on that issue. It also is significant that all parties to the action rely upon the same factual record to assert that the undisputed material facts warrant judgment as a matter of law in their favor.
The record here is comprised primarily of plaintiff's deposition testimony. To the extent that plaintiff's affidavit submitted in reply on the motion may contradict his deposition testimony, the deposition testimony will control the Court's view of the facts.
Plaintiff testified at his deposition that, on the day of the accident, he was provided with a work order for the Wilson Farms store in question to replace a face panel on the elevated sign in front of the store and to replace burnt out light bulbs and a blown ballast inside the sign. (p. 11). Plaintiff testified that one of the main reasons he was at the store was to replace a lower face panel because it was broken. (p. 38).
The sign was twelve to fifteen feet high from the ground. (p. 12). The sign had four panels which covered the light bulbs and ballast related thereto. (pp. 12-14). Each side of the sign had two such panels, an upper and a lower. (Id.).
After arriving at the store in his lifting truck with a retractable ladder, plaintiff elevated the ladder to the height of the sign and started servicing the sign to replace the ballast, sockets, burnt lines and lamps. (p. 11). Plaintiff described the ballast as a three inch by three inch block which is approximately one foot long. (p. 25). Plaintiff further characterized the ballast as a transformer of some sort. (Id.). Plaintiff removed the ballast and four light bulbs, replaced the bulbs, but was unable to find the appropriate replacement ballast to complete the work. (pp. 26-28).
In order to perform this work, it was necessary for the plaintiff to remove the upper and lower face panels from one side of the sign. (p. 27). Once plaintiff determined he could not complete the work that day, he went back up the ladder with the new lower panel to replace the broken one. (p. 33). The record reflects it was a very windy day and the wind nearly caused the plaintiff and his two co-workers to fall off the ladder. (p. 37). As plaintiff held the new lower face panel, another gust of wind caused the panel to act like a sail, rotated the ladder somewhat, and resulted in the plaintiff being knocked off the ladder and falling to the ground. (pp. 37-40).
Labor Law § 240(1) is to be construed as liberally as necessary to accomplish the purpose for which it was framed. Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991); Lombardi v. Stout, 80 NY2d 290 (1992); Quigley v. Thatcher; 207 NY 66 (1912). The statute [*3]places absolute liability upon owners, contractors, and their agents for any breach of the statutory duty that is the proximate cause of a plaintiff's injuries. Gordon v. Eastern Ry. Supply, 82 NY2d 555 (1993); Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513 (1985); Joyce v. Rumsey Realty Corp., 17 NY2d 118 (1966).
Case law under Labor Law § 240(1) is full of many fine distinctions interpreting the language of the statute. One of the finest distinctions is the difference between what acts constitute "repair" and what acts constitute "routine maintenance." Of course, the former is protected activity under the statute whereas the latter is not.
The Court of Appeals has directed that whether the work is covered by the statute "must be determined on a case-by-case basis, depending on the context of the work." Prats v. Port Auth. of NY & N.J., 100 NY2d 878, 883 (2003).
In support of their motion, defendants rely upon Smith v. Shell Oil Co., 85 NY2d 1000 (1995), wherein the Court of Appeals stated that the replacement of four light bulbs on an illuminated and elevated sign was not "repair," but rather a form of maintenance not covered by Labor Law § 240(1). Defendants also rely upon a number of decisions from Appellate Divisions other than the Fourth Department, including Sanacore v. Solla, 284 AD2d 321 (2nd Dept. 2001) (Labor Law § 240(1) does not cover a plaintiff who was struck in the head by a falling object while replacing a broken fluorescent light ballast) and Yun Kai Li v. Pho Viet Huong Rest., 291 AD2d 280 (1st Dept. 2002) (Labor Law § 240(1) does not encompass plaintiff's injuries suffered when he fell from a ladder as he climbed to inspect an illuminated sign that needed two light bulbs replaced). While defendants have rightfully referred to these cases from other Appellate Divisions involving somewhat similar circumstances as are involved here, defendants have failed to address or distinguish the more similar cases decided by the Fourth Department.
In Powers v. Carrols Corp., 8 AD3d 1061 (4th Dept. 2004), the Fourth Department affirmed partial summary judgment on plaintiff's Labor Law § 240(1) claim where plaintiff was repairing a light attached to a pole in the parking lot of defendants' restaurant. The bucket truck in which plaintiff was standing tipped over causing the plaintiff to fall approximately fifteen feet to the ground. The record on appeal in that action reflects that the light in the restaurant parking lot had been pushed by the wind to point at a neighbor's home and that it was able to swing on the pole by virtue of a broken bolt. Plaintiff was in the process of correcting the problem by fixing the bolt and re-pointing the light. The trial court held, and the Fourth Department affirmed, that this was "repair" work and not "routine maintenance."
Further, in Cook v. Presbyterian Homes of Western New York, Inc., 234 AD2d 906 (4th Dept. 1996), the Fourth Department concluded that plaintiff was engaged in "repair" work as opposed to "routine maintenance" while he was removing a defective fixture from defendants' light pole and attaching a new transformer to the fixture.
Here, plaintiff was repairing the sign by replacing a broken face panel, similar to repairing a broken bolt in Powers. Further, plaintiff was repairing and replacing a broken transformer, similar to what occurred in Cook. In essence, it appears that plaintiff was sent to the Wilson Farms store to repair a broken sign which was not operating properly as opposed to being sent to the store as a matter of routine maintenance to replace equipment worn out through normal wear and tear. [Cf. Smith, supra and Izrailev v. Ficarra Furniture, 70 NY2d 813 (1987)]. This Court therefore concludes that, at the time of the accident, plaintiff was engaged in [*4]"repairing" the sign in question and was not engaged in "routine maintenance."
As to defendants' claim that there must be some showing that the ladder involved was defective, the Fourth Department has rejected such claims. See, e.g., Abramo v. Pepsi-Cola Buffalo Bottling Co., 224 AD2d 980 (4th Dept. 1996) ("The law in this department is settled that a motion for summary judgment will not be denied merely because a scaffold or ladder from which a worker fell did not break, collapse, lapse or otherwise fail"). Instead, the Fourth Department has consistently held that where the plaintiff falls from a ladder while engaged in statutorily-protected work and no safety devices were provided that might have prevented the accident, summary judgment as to liability is appropriate. See Hodge v. Crouse Hinds Divsion of Cooper Industries, 207 AD2d 1007 (4th Dept. 1994); Burke v. APV Crepaco, Inc., 2 AD3d 1279 (4th Dept. 2003); Rounds v. Gibralter Steel Corp., 305 AD2d 1018 (4th Dept. 2003); Fichter v. Smith, 259 AD2d 1023 (4th Dept. 1999). Plaintiff here has established that he was engaged in protected conduct at the time of the accident, that he fell from an elevated height while situated on a ladder, and that there were no safety devices provided to him which might have prevented the accident. Plaintiff is therefore entitled to partial summary judgment as to liability on his claim under Labor Law § 240(1).
This Decision shall constitute the Order of the Court once it has been entered with the Clerk and served with Notice of Entry.
_______________________________________
HON. JOHN M. CURRAN, J.S.C.
GRANTED:
By:__________________________
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