Lavigne v Glens Falls Cement Co., Inc.

[*1] Lavigne v Glens Falls Cement Co., Inc. 2010 NY Slip Op 52241(U) [30 Misc 3d 1202(A)] Decided on December 21, 2010 Supreme Court, Rensselaer County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2010
Supreme Court, Rensselaer County

John A. Lavigne and Maureen A. Lavigne, Plaintiffs,

against

Glens Falls Cement Co., Inc. f/k/a GLENS FALLS CEMENT CO. OF NEW YORK, LEHIGH PORTLAND NEW YORK, LLC, LEHIGH PORTLAND DELAWARE, LLC, GLENS FALLS LEHIGH CEMENT COMPANY and LEHIGH CEMENT COMPANY, Defendants.



220462



O'CONNELL & ARONOWTIZ

(Robyn Eisen, Esq., of Counsel)

Attorneys for Plaintiffs

54 State Street

Albany, New York 12207

PENNOCK, BREEDLOVE & NOLL, LLP

(Carrie McLoughlin Noll, Esq., of Counsel)

Attorney for Defendants Glens Falls Cement Lehigh

Portland New York & Glens Falls Lehigh

1407 Route 9, Nine North

Clifton Park, New York 12065

Michael C. Lynch, J.

Plaintiff, an electrician, commenced this action premised upon Labor Law §§'s 200 and 241(6) after being injured while working at the defendant Glens Falls Cement Co.'s facility. Plaintiff's employer, Gross Electric, had been hired by [*2]defendant to address a power failure at the facility. It was determined that the power failure was caused by a defective electrical cable housed within a conduit at the stone crusher building. The cable was described as being approximately 2 inches in diameter, 100 feet in length and about 250 pounds. A "super tugger" machine was utilized to pull the cable from the conduit. This process involved a pully system where the cable wires were attached to a pulling rope with a device called a "cat of nine tails". At the time of the accident, plaintiff was standing on a elevated catwalk closely monitoring the cable being pulled through the pully system. During this process, the cable separated from the "cat of nine tails" and pulling rope which struck plaintiff in the arm and upper chest causing injury.

Before the Court is defendant's motion for summary judgment. Plaintiff has cross moved for summary judgment on his §241(6) claim, but does not oppose dismissal of his negligence and §200 causes of action (see plaintiff's Memorandum of Law at p. 2, footnote 1). Oral argument was held on December 21, 2010.

The issue presented is whether plaintiff's work involved construction or demolition within the coverage of Labor Law §241(6). Section 241 of the Labor Law, entitled "Construction, excavation and demolition work", provides:

"All contractors and owners and their agents, ... when constructing

or demolishing buildings or doing any excavating in connection therewith,

shall comply with the following requirements: ...

"6. All areas in which construction, excavation or demolition work is

being performed shall be so constructed, shored, equipped, guarded,

arranged, operated and conducted as to provide reasonable and adequate

protection and safety to the persons employed therein or lawfully

frequenting such places."

As explained by the Court of Appeals in Nagel v. D & R Realty Corp. (99 NY2d

98), "the statute is meant to protect workers engaged in duties connected to the inherently hazardous work of construction, excavation or demolition..." (Id at 101)

The Industrial Code defines "demolition work" as "work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment" (emphasis added) (12 NYCRR section 23-1.4[b][19]). "Construction work" is defined as "all work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" (emphasis added) [section 23-1.4 [b][13]). Both categories require work implicating "buildings or other structures". [*3]

In support of its application, defendant submitted the affidavit of Carl Abraham, a professional engineer, who opined that the process of removing and replacing damaged cable from a conduit is a repair of a pre-existing component, not demoltion or construction. By comparison, plaintiff's engineering expert, Lee Winter, opined that plaintiff was engaged in both electrical demolition and construction given the characteristics of the cable and the complexity of the removal process. Plaintiff's thesis, as explained by his expert, is focused on the demolition and removal of the failed electrical cable (see Winter affidavit at paragraph 27), which he maintains also constitutes an alteration of the cable and conduit (Id at para. 29).

The narrow question becomes whether the removal of the cable constitutes either the demolition or alteration of a structure within the meaning of Labor Law §241(6).

A "structure" has been defined for purposes of Labor Law §240[1] as "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Lewin-Moors v. Contel of NY, 78 NY2d 942, 943).

In Joblon v. Solow (91 NY2d 457), the Court of Appeals determined that the plaintiff was engaged in altering a structure within the meaning of §241(6) while installling a wall clock. In performing that project, the plaintiff had to extend electrical wiring encased in a conduit from an adjacent room through a concrete wall. After chiseling a hole through the wall, plaintiff was injured when an unsecured ladder slipped as he completed the project. In so finding, the Court of Appeals determined that an alteration "required making a significant physical change to the configuration or composition of the building or structure" (Id. At p. 465).

In Wade v. Atlantic Cooling Tower Servs., Inc. (56 AD3d 547), the plaintiff was injured while dismantling part of a sprinkler system. The system was attached to a cooling tower and consisted of numerous metal pipes (Id 548-549). This work was deemed demolition of a structure within the scope of Labor Law §241(6). Also instructive is Becker v. ADN Design Corp. (51 AD3d 834) where the plaintiff's work running telephone wires in an attic crawl space was characterized as altering the premises and thus construction work under Labor Law §241(6).

By analogy to Joblon, Wade and Becker, the Court finds that plaintiff's work here is properly characterized as altering a structure within the meaning of Labor Law §241(6), and embraced within the definition of both demolition and construction. [*4]

Moreover, plaintiff has a viable claim under Labor Law §241(6) based on a violation of 12 NYCRR §§'s23-1.4(60); 23-3.4(c)(3)-(6), which require implementation of a protective "zone of demolition". These regulations are sufficiently specific to support a Labor Law §241(6) claim, are applicable to the project in question and arguably were violated, thus warranting a trial on this claim (see Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 350-351; Terry v. Mutual Life Ins. Co., 265 AD2d 929).

Accordingly, defendant's motion for summary judgment is denied, except to the extent plaintiff's negligence and Labor Law §200 causes of action are dismissed; Plaintiff's cross-motion is denied, all without costs.

This Memorandum constitutes the Decision and Order of the Court. This

original Decision and Order is being returned to the attorney for defendants.

The below referenced original papers are being mailed to the Rensselaer

County Clerk. The signing of this Decision and Order shallnot constitute

entry or filing under CPLR 2220. Counsel is not relieved from the provision

of that rule regarding filing, entry, or notice of entry.

Dated:December, 2010

Albany, New York

___________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

(1)Defendant's Notice of Motion for Summary Judgment initially returnable July 26, 2010, with Affirmation of Carrie McLoughlin Noll, Esq. dated June 18, 2010, and Exhibits "A" - "H"; affidavit of C.J. Abraham dated September 9, 2010, with Exhibits "A" & "B"; Reply Affirmation of Attorney Noll dated September 13, 2010; Defendant's Memorandum of Law dated June 18, 2010; and Defendant's Reply Memorandum of Law dated [*5]

(2)Plaintiff's Notice of Cross Motion initially returnable August 17, 2010, with Affirmation of Robyn Eisen, Esq. dated August 10, 2010 with Exhibits "A" - "K"; Affidavit of Les Winter dated August 9, 2010, with Exhibits "A" & "B"; and Memorandum of Law dated August 10, 2010.