Washington v Artur Contr., Inc.

[*1] Washington v Artur Contr., Inc. 2010 NY Slip Op 51854(U) [29 Misc 3d 1216(A)] Decided on October 28, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 28, 2010
Supreme Court, Queens County

Darrell Washington

against

Artur Contracting, Inc.



16880 2008



For the Plaintiff: Talkin, Muccigrosso & Roberts, LLP, by Jonathan E. Roberts, Esq., 40 Exchange Pl., New York, New York 10005

For the Defendant: Faust Goetz Schenker & Blee, by Jessica Molinares, Esq., Two Rector St., New York, New York 10006

Charles J. Markey, J.

Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained when his foot became entangled in an extension cord while climbing a ladder to access the elevator room in order to re-set a stalled elevator. Plaintiff fell and was injured. The complaint alleges that the cord and another ladder had been left behind by Artur, a contractor who had performed work on the roof of the building. Defendant moves to dismiss the complaint on the grounds that plaintiff was not engaged in work protected by the Labor Law. Plaintiff opposes the motion.

To prove a prima facie case of negligence in a case based on a hazardous condition, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Lamont v Lane Bryant, Inc., 33 AD3d 669 [2nd Dept. 2006]; Bradish v Tank Tech Corp., 216 AD2d 505 [2nd Dept. 1995]). Cases grounded on circumstantial evidence require a showing of sufficient facts from which the [*2]negligence of the defendant and the causation of the accident by that negligence can be reasonably inferred (see, Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743 [1986]; Haggerty v Zelnick, 68 AD3d 721 [2nd Dept. 2009]; Garrido v Intl. Bus. Mach. Corp. [IBM], 38 AD3d 594 [2nd Dept. 2007]; Bradish v Tank Tech Corp., supra; Thomas v New York City Tr. Auth., 194 AD2d 663 [2nd Dept. 1993]).

Here, defendant failed to establish, prima facie, its entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The two principals of Artur testified that both the cord and the ladder resembled their equipment but they could not positively identify the items as belonging to Artur. Plaintiff, on the other hand, testified that Artur had left the materials behind and that plaintiff had contacted Artur requesting that Artur return to retrieve them. Clearly the conflicting testimony raises triable issues of fact as to whether Artur created or had actual or constructive notice of the hazardous condition (see, Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, supra; Haggerty v Zelnick, 68 AD3d 721, supra; Garrido v Intl. Bus. Mach. Corp. [IBM], 38 AD3d 594, supra). Accordingly, the branch of the motion which seeks to dismiss plaintiff's Labor Law section 200 and common-law negligence claims is denied.

Under Labor Law section 240(1), owners and contractors have a non-delegable duty to provide certain safety equipment for workers engaged in the "... erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." It is well settled that Labor Law section 240(1) "... is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed" (Martinez v City of New York, 93 NY2d 322 [1999]). However, "... the statutory language must not be strained in order to encompass what the Legislature did not intend to include."

"While the reach of section 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Martinez v City of New York, 93 NY2d at 326 [citation and internal quotation marks omitted]; see, Holler v City of New York, 38 AD3d 606, 607 [2nd Dept. 2007]). " [A]ltering' within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure" (Joblon v Solow, 91 NY2d 457, 465 [1998]; see, Holler v City of New York, 38 AD3d at 607). Tasks comprising "routine maintenance" are not protected under the statute (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; Azad v 270 5th Realty Corp., 46 AD3d 728, 729-730 [2nd Dept. 2007]).

Here, deposition testimony established that plaintiff had been assigned to re-set the elevators as a coworker was stuck in one of the elevators at the location. Plaintiff testified that, to accomplish his task, he had to travel to the roof of the location; once on the roof of the location, plaintiff traveled to the elevator room where the elevator controls were located. The elevator control room was a structure located above the roof, access to which was had by [*3]climbing a ladder that was welded to the elevator room. While climbing the welded ladder, plaintiff testified that he tripped on an extension cord that had been "dangling loosely" along the left side of the welded ladder causing plaintiff to fall onto a second ladder allegedly chained to the welded ladder. Plaintiff testified that the extension cord had been in the same condition approximately one week prior, and that it had not been removed by either plaintiff or his coworkers as "they didn't want to touch it." Under these facts, plaintiff was not engaged in a task protected by the statute but was instead performing routine maintenance when he fell (see, Thompson v 1701 Corp., 51 AD3d 904 [2nd Dept. 2008]; Azad v 270 5th Realty Corp., 46 AD3d at 728).

In Nagel v D & R Realty Corp. (99 NY2d 98 [2002]), the Court of Appeals explained that the protections afforded by Labor Law section 241(6) only apply to plaintiffs who are performing maintenance or repair work "in the context of construction, demolition, and excavation" of a building or structure (99 NY2d at 103). In that case, the plaintiff was performing inspection and maintenance work on an elevator in an existing building, and the Nagel court specifically rejected the contention, raised by plaintiff here, that section 241(6) incorporates by reference a rule promulgated by the Industrial Board of Appeals, which defines construction as including maintenance work. As it is uncontested that plaintiff was not working on a "construction, demolition [or] excavation" project, Nagel precludes any claim under Labor Law section 241(6). Thus, as for plaintiff's claims under Labor Law section 241(6), because the protections of Labor Law section 241(6) do not apply to claims arising out of maintenance of a building or structure outside of the construction context, such claims must fail.

Accordingly, the branches of the motion which seek to dismiss plaintiff's claims pursuant to Labor Law sections 240(1) and 241(6) are granted.

The branches of the motion which seek to dismiss plaintiff's Labor Law section 200 and common-law negligence claims are denied.

The foregoing constitutes the decision, opinion, and order of this Court.

Dated: October 28, 2010

J.S.C.