Wicks v Trigen-Syracuse Energy Corp.

[*1] Wicks v Trigen-Syracuse Energy Corp. 2007 NY Slip Op 52407(U) [18 Misc 3d 1104(A)] Decided on December 19, 2007 Supreme Court, Onondaga County Greenwood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2007
Supreme Court, Onondaga County

Gary Wicks, Plaintiff,

against

Trigen-Syracuse Energy Corporation, Defendant.



2004-7448



APPEARANCES:

ROBERT A. QUATTROCCI, ESQ., OF STANLEY LAW

OFFICES, LLP

For Plaintiff

CHRISTOPHER E. WILKINS, ESQ., OF WALSH & WILKINS

For Defendant

Donald A. Greenwood, J.

The plaintiff has moved for partial summary judgment on the issue of liability concerning his cause of action alleging a violation of Labor Law 240(1). The defendant has opposed and cross-moved for summary judgment dismissing all of the plaintiff's causes of action, which also include violations of Labor Law 241(6) and 200 and common law negligence.

Plaintiff was working for Buffalo Alternative Fuels at a power plant owned by the defendant. The plant includes a generating facility which is adjacent to its processing facility. Paper is shredded in the processing facility and supplied to the generating facility to be burned to produce steam, which is used to produce electricity. The defendant had a subcontract agreement with plaintiff's employer to provide manpower and services in one of the seven buildings on the site. A "bag house", a giant vacuum used to remove dust from the plant, was located outside the building. The bag house, also owned by the defendant, is part of the processing plant and removes airborne particulates in the processing facility. It is comprised of two hoppers. The dust collected in a hopper empties out onto the auger and is pushed into a bin located at the bottom of the hopper. A front loader then pushes the bin onto a conveyor and sends it to the generating [*2]facility to be burned.

The plaintiff alleges that he was injured while working in the production building. He claims that on the date of the accident the hoppers had become clogged and required cleaning. The plaintiff testified that they would need to be cleaned anywhere from one to five times during a twelve hour shift and that he had cleaned out the bag house at least fifty times prior to this incident. In order to clean out the bag house on the night of the accident, the plaintiff climbed an eight foot metal ladder up to the encased auger, which was elevated five feet. While straddling the top of the encased auger area, the plaintiff opened the hopper door of the auger, picked up a broomstick and pushed the stick down to clean out the dust. The plaintiff testified that theladder, which was owned by the defendant, had no feet and could not be tied off. According to the plaintiff, after he cleaned the bag house, he began to descend the ladder, which slid, causing him to fall.

Labor Law section 240(1) requires that all contractors and owners engaged in erection, demolition, construction, excavation, alteration and cleaning of a building or structure shall furnish or erect for the performance of such labor, scaffolding, hoists, stays, braces, ladders and other such devices that shall be so constructed, placed and operated to provide proper protection to a person so employed. In moving for partial summary judgment on this cause of action, the plaintiff alleges that he was engaged in cleaning, an enumerated protected activity and that the fact that the ladder slid creates a prima facie violation of the statute. In moving for partial summary judgement on this cause of action, the plaintiff relies on his own deposition testimony and the testimony of defendant's representative who confirmed that the ladder was previously attached to another piece of equipment, that it had no feet and was leaning against the platform. That witness also conceded that the ladder's placement constituted a safety violation (see, Winney deposition, pp. 46, 54). The Fourth Department has consistently held that an unsecured ladder, which is not so placed to give the plaintiff proper protection, is a violation of Labor Law §240(1). See, Petit v. Board Of Education of West Genesee School District, 307 AD2d 749 (4th Dept. 2003); see also, Burke, supra.; see also, Lang v. Charles Mancuso & Son, Inc., 298 AD2d 960 (4th Dept. 2002); see also, Boncore v. Temple Beth Zion, 299 AD2d 953 (4th Dept. 2002). In addition, the Court of Appeals has explicitly held that cleaning is expressly afforded protection under section 240(1) whether or not it is associated with any other enumerated activity, and that routine maintenance is not a defense to a cleaning allegation. See, Broggy v. Rockefeller Group, 8 NY3d 675 (2007), citing Smith v. Shell Oil Co., 85 NY2d 1000 (1995). There, the plaintiff was injured while performing commercial window cleaning. See, id. The court specifically held that "[t]he crucial consideration under section 240(1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240(1); or whether a window's exterior or interior is being cleaned. Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against." Id. In the present case, there is no dispute that such an elevation-related risk was created inasmuch as plaintiff was could not perform the required task without the use of a ladder to reach the auger which was elevated five feet. Sincethe plaintiff has met his burden, the burden then shifts to the defendant to raise an issue of fact with respect to this cause of action. See, Williams v. City of Niagara Falls, 2007 WL 2812761 (4th Dept. 9/28/07). In opposing, the defendant also cross-moves for [*3]summary judgmentseeking dismissal of the entire complaint. With respect to the Labor Law §240(1) cause of action, the defendant has argued that since the plaintiff was engaged in "routine maintenance", no violation of the statute exists. This argument, however, is without basis in law given the Broggy decision and as such, the defendant has failed to meet its burden in opposing plaintiff's motion and as the movant in the cross- motion. As such, plaintiff's motion is granted.With respect to the plaintiff's cause of action pursuant to Labor Law section 241(6) claim, the law is well settled that protections under the statute do not apply to claims arising out of maintenance of a building or structure outside of the construction context and such claims must fail. See, Nagel v. D & R Realty Corp., 99 NY2d 98 (2002); see also Farmer v. Central Hudson Gas & Electric Corp., 299 AD2d 856 (4th Dept. 2002) (modified at 302 AD2d 1017 (4th Dept. 2003). The plaintiff, therefore, is not entitled to protection under this statute as a matter of law because there is no issue of fact with respect to whether he was engaged in a construction related activity. As such, the defendant's cross-motion for summary judgment dismissing the cause of action under Labor Law 241(6) is granted.

With respect to the defendant's motion for summary judgment dismissing the Labor Law section 200/common law negligence claims, the law is well settled that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law section 200. See, Fisher v. WNY Bus Parts, Inc., 12 AD3d 1138 (4th Dept. 2004); see also, D'Antuono v. Goodyear Tire & Rubber Co., 230 AD2d 955 (4th Dept. 1996). The defendant has met its burden here based upon the testimony in the record that no one from the defendant was working in the paper processing plant at the time of the accident and that the plaintiff's work was not supervised by the defendant, and the burden therefore shifts to the plaintiff to raise an issue of fact. The plaintiff has done so here through his reliance on the deposition testimony of Mark Wickam, who is the Buffalo Fuel Site Manager of the processing facility, who testified that defendant Trigen had control over his duties. The plaintiff testified that it was the defendant that requested that the bag house be cleaned, which provides further evidence of the ability to direct and control. Mark Gilmore, the defendant's plant manager testified that if the Buffalo Fuel employees had an issue they would ask the Trigen supervisor.The rules and regulations section of the subject contract indicates that Buffalo Fuel employees are required to obey the instructions of defendant's personnel and both the bag house and the ladder were owned by the defendant. In addition, Antonio DiFlorio, one of plaintiff's co-workers testified that workers complained to the defendant about both the defective ladder and the lighting around the bag house. Therefore, a question of fact exists as to whether the defendant, as owner, exercised supervisory control over the operation and as such, the defendant's motion for summary judgment dismissing the Labor Law §200/common law negligence claims is denied.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that plaintiff's motion for partial summary judgment on the issue of liability concerning his cause of action alleging a violation of Labor Law section 240(1) is granted, and it is further

ORDERED, that the defendant's cross-motion for summary judgment dismissing the [*4]causes of action pursuant to Labor Law section 241(6) is granted, and it is further

ORDERED, that defendant's cross-motion for summary judgment dismissing the causes of action alleging a violation of Labor Law sections 240(1) and 200 and for common law negligence is denied.

ENTER

Dated: December 19, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice