| Becker v ADN Design Corp. |
| 2008 NY Slip Op 04634 [51 AD3d 834] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Lawrence Becker, Appellant, v ADN Design Corp. et al.,Respondents, et al., Defendant. |
—[*1] John P. Humphreys, Melville, N.Y. (David R. Holland of counsel), for respondents ADNDesign Corp., Closets By Design, and Stuart Reisch. Epstein, Rayhill & Frankini, Woodbury, N.Y. (Russell M. Plotkin of counsel), for respondentNoel Manufacturing Co., Inc.
Motion by the respondent Noel Manufacturing Co., Inc., for leave to reargue an appeal froman order of the Supreme Court, Nassau County, dated August 18, 2006, which was determined bydecision and order of this Court dated November 20, 2007 (see Becker v ADN Design Corp., 45 AD3d 711 [2007]).
Upon the papers filed in support of the motion and the papers filed in opposition and relationthereto, it is
Ordered that the motion is granted, and upon reargument, the decision and order of this Courtdated November 20, 2007 is recalled and vacated, and the following decision and order issubstituted therefor:
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Nassau County (Bucaria, J.), dated August 18, 2006, as grantedthat branch of the motion of the defendant Noel Manufacturing Co., Inc., which was for summary[*2]judgment dismissing the complaint insofar as asserted againstit, and granted those branches of the separate motion of the defendants ADN Design Corp.,Closets by Design, and Stuart Reisch which were for summary judgment dismissing the causes ofaction alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as assertedagainst them.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of the defendant Noel Manufacturing Co., Inc., and the separatemotion of the defendants ADN Design Corp., Closets by Design, and Stuart Reisch which werefor summary judgment dismissing the plaintiff's cause of action alleging violations of Labor Law§ 240 (1) insofar as asserted against them, and so much of the plaintiff's Labor Law§ 241 (6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(b) (1), and substituting therefor provisions denying those branches of the motions; as somodified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffpayable by the defendants appearing separately and filing separate briefs, and the matter isremitted to the Supreme Court, Nassau County, to determine that branch of the motion of thedefendant Noel Manufacturing Co., Inc., which was for summary judgment on its cross claimsfor contractual and common-law indemnification.
The defendants ADN Design Corp., Closets by Design, and Stuart Reisch (hereinaftercollectively ADN) hired the plaintiff to rewire their telephone system. ADN leased space in abuilding owned by the defendant Noel Manufacturing Co., Inc. (hereinafter Noel), anout-of-possession landlord. According to the plaintiff, he was running wires in an attic crawlspace, as directed by ADN, when he fell through a sheet rock ceiling in the office area belowwhile trying to traverse a gap in a plywood path laid across the ceiling joists. The plaintiffdescribed the gap as requiring a "good leap" to cross, and the plywood path as being obstructedby a discarded metal door, a rug, and "some sort of wood structure." According to ADN, theplaintiff was instructed to run the wires on the outside of the office walls and not to enter the atticcrawl space. The plaintiff commenced this action to recover damages for personal injuriesallegedly arising from, inter alia, violations of Labor Law §§ 200, 240, and 241, andcommon-law negligence. The Supreme Court granted Noel summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, and granted ADN summaryjudgment dismissing the plaintiff's Labor Law § 240 (1) and § 241 (6) causes ofaction insofar as asserted against it. The court held, inter alia, that the plaintiff's injuries did notarise from an elevation-related risk within the purview of Labor Law § 240 (1), and did notoccur in an area where construction, excavation, or demolition work was being performed asrequired by Labor Law § 241 (6). Given its determination, the court did not reach thatbranch of Noel's motion which was for summary judgment on its cross claims for contractual andcommon-law indemnification as against ADN. We modify.
We disagree with the Supreme Court's conclusion that the plaintiff's work did not involve anelevation-related risk within the purview of Labor Law § 240 (1) (see Cavanagh v Mega Contr., Inc., 34AD3d 411 [2006]; Traver v ValenteHomes, Inc., 20 AD3d 856 [2005]; Nelson v Ciba-Geigy, 268 AD2d 570[2000]; Richardson v Matarese, 206 AD2d 353 [1994]). Thus, the plaintiff's Labor Law§ 240 (1) cause of action should not have been dismissed on that ground. Noel's contentionthat the plaintiff was engaged in mere routine maintenance is not properly before this Courtbecause it is raised for the first time on appeal. In any event, the argument lacks merit. Theplaintiff's work is properly characterized as "altering" within the meaning of Labor Law §240 (1) (see Joblon v Solow, 91 NY2d 457, 465-466 [1998]; Alvia v Teman Elec.Contr., 287 AD2d 421, 423 [2001]). However, we decline the plaintiff's invitation to searchthe record and grant him summary judgment on his Labor Law § 240 (1) cause [*3]of action. There are issues of fact, inter alia, as to whether theplaintiff's own conduct was the sole proximate cause of his injuries and whether the plywoodprovided satisfied the requirements of Labor Law § 240 (1) (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 290 [2003]).
Further, contrary to the Supreme Court's determination, the plaintiff's rewiring of ADN'stelephone system constituted an "altering" of the premises, which falls within the ambit of"construction" work under Labor Law § 241 (6) (see Joblon v Solow, 91 NY2d at466; 12 NYCRR 23-1.4 [b] [13]). Thus, the plaintiff's Labor Law § 241 (6) cause of actionshould not have been dismissed on that ground. Further, we find issues of fact as to whether therewas a violation of 12 NYCRR 23-1.7 (b) (1) (see Bonse v Katrine Apt. Assoc., 28 AD3d 990 [2006]; cf.Alvia v Teman Elec. Contr., 287 AD2d at 422-423). However, the remaining Industrial Codesections cited by the plaintiff are inapplicable to the facts presented. Thus, to the extent that theplaintiff's Labor Law § 241 (6) cause of action is predicated upon an alleged violation of12 NYCRR 23-1.7 (b) (1), it should not have been dismissed.
In light of our determination, the matter is remitted to the Supreme Court, Nassau County,for a determination of that branch of Noel's motion which was for summary judgment on its crossclaims as against ADN for contractual and common-law indemnification.
The parties' remaining contentions are without merit. Ritter, J.P., Santucci, Miller andBalkin, JJ., concur.