| LaGiudice v Sleepy's Inc. |
| 2009 NY Slip Op 08788 [67 AD3d 969] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Dean LaGiudice et al., Appellants-Respondents, v Sleepy'sInc., Respondent-Appellant. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), datedSeptember 11, 2008, as denied their cross motion for summary judgment on the issue of liabilityon the cause of action alleging a violation of Labor Law § 240 (1) and granted that branchof the defendant's motion which was for summary judgment dismissing that cause of action, andthe defendant cross-appeals from so much of the same order as denied that branch of its motionwhich was for summary judgment dismissing the causes of action alleging a violation of LaborLaw § 200 and, in effect, denied that branch of its motion which was for summaryjudgment dismissing the cause of action alleging common-law negligence.
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law,without costs or disbursements, the plaintiffs' cross motion for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1) is granted, thatbranch of the defendant's motion which was for summary judgment dismissing the cause ofaction alleging a violation of Labor Law § 240 (1) is denied, and those branches of thedefendant's motion which were for summary judgment dismissing the causes of action allegingcommon-law negligence and a violation of Labor Law § 200 are granted.
The plaintiff Dean LaGiudice (hereinafter LaGiudice) allegedly was injured when he fellwhile descending a six-foot tall A-frame ladder after installing an electrical exit sign at thedefendant's store. At his deposition, LaGiudice testified that, as he stepped down from the thirdrung to the second rung, the ladder shifted. LaGiudice further testified that he fell from theladder and, while on the floor, saw that the entrance rug on which he had positioned the ladderwas "up."
LaGiudice and his wife, suing derivatively, commenced this action against the defendant,asserting causes of action alleging, inter alia, common-law negligence and violations of LaborLaw §§ 200 [*2]and 240 (1). The Supreme Courtgranted that branch of the defendant's motion which was for summary judgment dismissing theLabor Law § 240 (1) cause of action and denied the plaintiffs' cross motion for summaryjudgment on the issue of liability on that cause of action, concluding that LaGiudice wasengaged in routine maintenance, and not an activity covered by Labor Law § 240 (1). Thecourt denied that branch of the defendant's motion which was for summary judgment dismissingthe Labor Law § 200 cause of action and, in effect, denied that branch of its motion whichwas for summary judgment dismissing the cause of action alleging common-law negligence.
"While the reach of section 240 (1) is not limited to work performed on actual constructionsites, the task in which an injured employee was engaged must have been performed during theerection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure"(Martinez v City of New York, 93 NY2d 322, 326 [1999] [citation and internal quotationmarks omitted]; see Holler v City ofNew York, 38 AD3d 606, 607 [2007]). " '[A]ltering' within the meaning of Labor Law§ 240 (1) requires making a significant physical change to the configuration orcomposition 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 "routinemaintenance" are not protected under the statute (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526,528 [2003]; Azad v 270 5th RealtyCorp., 46 AD3d 728, 729-730 [2007]). Here, deposition testimony established thatLaGiudice had been assigned to install one or more electrical exit signs. LaGiudice stated that, toaccomplish his task, he had to pull the electrical cable to or through the ceiling, drill cinderblocks, open up the electrical panels, and possibly cut part of the ceiling splines. Under thesefacts, LaGiudice was engaged in a task protected by the statute (see Joblon v Solow, 91NY2d 457 [1998]; Weininger v Hagedorn & Co., 91 NY2d 958 [1998]; cf. Esposito v New York City Indus. Dev.Agency, 1 NY3d 526 [2003]; Smith v Shell Oil Co., 85 NY2d 1000 [1995]).
Moreover, LaGiudice made a prima facie showing of entitlement to judgment as a matter oflaw on the issue of liability on the Labor Law § 240 (1) cause of action through hisdeposition testimony, which demonstrated that the ladder on which he was working moved forno apparent reason, causing him to fall (see Razzak v NHS Community Dev. Corp., 63 AD3d 708, 709[2009]; Mingo v Lebedowicz, 57AD3d 491, 493 [2008]; Gilhooly vDormitory Auth. of State of N.Y., 51 AD3d 719, 720 [2008]; Hanna v Gellman, 29 AD3d 953,954 [2006]). In opposition, the defendant failed to raise a triable issue of fact (see Ricciardi v Bernard Janowitz Constr.Corp., 49 AD3d 624, 625 [2008]; Argueta v Pomona Panorama Estates, Ltd., 39 AD3d 785, 786[2007]). Accordingly, the Supreme Court should have denied that branch of the defendant'smotion which was for summary judgment dismissing the Labor Law § 240 (1) cause ofaction and granted the plaintiffs' cross motion for summary judgment on the issue of liability onthat cause of action.
Labor Law § 200 is a codification of the common-law duty of landowners and generalcontractors to provide workers with a reasonably safe place to work (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Lombardi v Stout,80 NY2d 290, 294-295 [1992]; Chowdhury v Rodriguez, 57 AD3d 121, 127-128 [2008]). Casesinvolving Labor Law § 200 generally fall into two categories: those where workers wereinjured as a result of dangerous or defective conditions at a work site and those involving themanner in which the work was performed (see Chowdhury v Rodriguez, 57 AD3d at128; Ortega v Puccia, 57 AD3d54, 61 [2008]). Where a premises condition is at issue, a property owner is liable underLabor Law § 200 when the owner created the dangerous condition causing an injury orwhen the owner failed to remedy a dangerous or defective condition of which he or she hadactual or constructive notice (see Chowdhury v Rodriguez, 57 AD3d at 128; Ortega vPuccia, 57 AD3d at 61; Azad v 270 5th Realty Corp., 46 AD3d at 730). Where aclaim arises out of alleged defects or dangers in the methods or materials of the work, recoveryagainst the owner or general contractor cannot be had under Labor Law § 200 unless it isshown that she or he had the authority to supervise or control the performance of the work(see Ortega v Puccia, 57 AD3d at 61; Dooley v Peerless Importers, Inc., 42 AD3d 199, 204 [2007]). Tothe extent that the plaintiff's common-law negligence and Labor Law § 200 causes ofaction are based on the allegedly defective condition or placement of the rug, the defendantestablished its prima facie entitlement to judgment as a matter of law by demonstrating that it didnot create or have actual or constructive notice of a dangerous or defective condition. To theextent that those causes of action are based on the defective condition or inadequacy of theladder, the defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not have authority to supervise or control the performance of the work(see McFadden v Lee, 62 AD3d966, 967-968 [2009]; Ortega v Puccia, [*3]57 AD3dat 63). In opposition, the plaintiffs failed to raise a triable issue of fact (see Ortega vPuccia, 57 AD3d at 63). Dillon, J.P., Florio, Balkin and Leventhal, JJ., concur.