| Wade v Atlantic Cooling Tower Servs., Inc. |
| 2008 NY Slip Op 08728 [56 AD3d 547] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Francis Wade, Respondent, v Atlantic Cooling TowerServices, Inc., Defendant, and 58/59 Acquisition Co., LP, Appellant. |
—[*1] Hach & Rose, LLP, New York, N.Y. (Philip Abate of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant 58/59 Acquisition Co.,LP, appeals, as limited by its brief and by stipulation dated February 26, 2008, from so much ofan order of the Supreme Court, Queens County (Satterfield, J.), dated November 16, 2007, asdenied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendant 58/59 Acquisition Co., LP, which were forsummary judgment dismissing the causes of action to recover damages for common-lawnegligence and violation of Labor Law § 200 insofar as asserted against it, and substitutingtherefor provisions granting those branches of the motion and, upon searching the record, theplaintiff's motion for summary judgment on the issue of liability on the cause of action to recoverdamages for violation of Labor Law § 240 (1) is granted; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
The plaintiff was disassembling the pipes of a defunct sprinkler system attached to a coolingtower located on the roof of an office building leased by the defendant 58/59 Acquisition Co., LP(hereinafter the defendant), when he fell through the floor of the tower and sustained injuries.The plaintiff commenced this action, asserting causes of action to recover damages forcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and §241 (6).
Labor Law § 240 (1) imposes an obligation on "contractors and owners and theiragents" to provide suitable safety devices to employees who are working at an elevated heightand who are engaged in the "altering . . . of a building or structure." " 'Altering'within the meaning of Labor Law § 240 (1) requires making a significant physicalchange to the configuration or composition of the building or structure" (Joblon v Solow,91 NY2d 457, 465 [1998]). The sprinkler system, which was attached to the cooling tower,consisted of numerous metal pipes, and was not a temporary installation. Thus, the plaintiff'sdismantling of the sprinkler system constituted the alteration of the structure within the meaningof Labor Law § 240 (1) (seeBecker v ADN Design Corp., 51 AD3d 834 [2008]; Fitzpatrick v State of New York, 25 AD3d 755, 757 [2006];Cuddon v Olympic Bd. of Mgrs., 300 AD2d 616, 617 [2002]). Accordingly, the trialcourt properly denied that branch of the defendant's motion which was for summary judgmentdismissing the plaintiff's Labor Law § 240 (1) cause of action. Moreover, under thecircumstances, we search the record and grant the plaintiff's motion for summary judgment onthe issue of liability on his Labor Law § 240 (1) cause of action (see CPLR 3212;Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280 [2003]).
Labor Law § 241 (6) requires that safeguards be taken with regard to "[a]ll areas inwhich construction, excavation or demolition work is being performed" (see Pino v Robert Martin Co., 22AD3d 549 [2005]). Demolition is defined as "work incidental to or associated with the totalor partial dismantling or razing of a building or other structure including the removing ordismantling of machinery or other equipment" (12 NYCRR 23-1.4 [b] [16]). Here, the plaintiffwas in the process of demolishing a part of the sprinkler system attached to a cooling tower. Thiswork constituted the demolition of a structure within the meaning of Labor Law § 241 (6).Accordingly, the Supreme Court properly denied that branch of the defendant's motion whichwas for summary judgment dismissing the plaintiff's Labor Law § 241 (6) cause of action.
Labor Law § 200 is a codification of the common-law duty imposed upon an owner orgeneral contractor to provide construction-site workers with a safe place to work (see Reinoso v Ornstein Layton Mgt., Inc.,19 AD3d 678, 679 [2005]). For liability to attach in an action based on the manner ormethod of the work, the defendant must have authority to supervise or control the performance ofthe work (see Ortega v Puccia, 57 AD3d 54, 62-63 [2008]). The record is devoid of evidence that the defendant had authority to supervise or controlthe work being performed. The evidence established that the only personnel who supervised thework were employed by the plaintiff's employer, not by the defendant. While there wasdeposition testimony that the plaintiff was instructed to walk on the beams (as opposed to on thefloor) inside the cooling tower, that it was standard practice to instruct employees to walk on thebeams, and that this was recommended in industry guidelines, this testimony was furnished bythe plaintiff's supervisor, who, again, was employed by the plaintiff's employer, not by thedefendant. Moreover, although there may have been a sign on the access door of the coolingtower warning against walking on the floor, there was no evidence to suggest that the defendantposted this sign. Accordingly, the trial court should have granted those branches of thedefendant's motion which were for summary judgment dismissing the causes of action to recoverdamages for common-law negligence and violation of Labor Law § 200 insofar as assertedagainst it.[*2]
In light of our determination, we need not reach thedefendant's remaining contention. Skelos, J.P., Ritter, Carni and Dickerson, JJ., concur.