| Pieri v B&B Welch Assoc. |
| 2010 NY Slip Op 05049 [74 AD3d 1727] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Duane Pieri, Sr., et al., Respondents, v B&B WelchAssociates, Appellant. |
—[*1] Walsh, Roberts & Grace, Buffalo (Keith N. Bond of counsel), forplaintiffs-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Timothy J. Drury, J.), enteredApril 24, 2009 in a personal injury action. The judgment awarded plaintiffs damages againstdefendant upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by Duane Pieri, Sr. (plaintiff) while working at anapartment complex (complex) owned by defendant. Plaintiff was injured while servicing a liftstation at the complex, which consists of, inter alia, a tank into which sewage from the complexflows and is processed before it is ejected into a municipal sewage system. The tank for the liftstation is approximately 15 feet in depth and contains two pumps and four floats that maintainthe sewage level. Supreme Court granted those parts of defendant's motion for summaryjudgment dismissing the Labor Law § 200 and common-law negligence claims, as well asthe Labor Law § 241 (6) claim insofar as it is based on the alleged violation of 12 NYCRR23-1.5. Defendant appeals from a judgment entered upon a jury verdict finding it liable pursuantto Labor Law § 240 (1).
At the time of the accident, plaintiff worked part-time for Belmont Management Company(Belmont), which managed the complex, and he was "on-call" to handle problems that Belmont'spart-time maintenance worker could not handle. Plaintiff had previously worked for Belmont forapproximately 15 years as a maintenance supervisor and he was familiar with the lift station.During the course of that employment, plaintiff had purchased, on behalf of Belmont, athree-legged, aluminum tripod with a harness to be used for working "down in the pit" of the liftstation. The base radius of the tripod would allow it to be placed over the opening to the tank.Plaintiff fell into the tank while kneeling at the side of the pit as he reached for a line to one ofthe floats in the tank in an effort to resolve a pump malfunction that threatened to overflow thelift station.[*2]
We reject the contention of defendant that the court erredin denying that part of its motion for summary judgment dismissing the Labor Law § 240(1) claim on the ground that plaintiff was performing only routine maintenance at the time of theaccident. "[D]elineating between routine maintenance and repairs is frequently a close,fact-driven issue" (Pakenham v Westmere Realty, LLC, 58 AD3d 986, 987 [2009]). Thatdistinction depends upon "whether the item being worked on was inoperable or malfunctioningprior to the commencement of the work" (Craft v Clark Trading Corp., 257 AD2d 886,887 [1999]; see Buckmann v State ofNew York, 64 AD3d 1137, 1139 [2009]), and whether the work involved thereplacement of components damaged by normal wear and tear (see Abbatiello v Lancaster StudioAssoc., 3 NY3d 46, 53 [2004]; Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528[2003]). "Where a person is investigating a malfunction . . . , efforts in furtheranceof that investigation are protected activities" (Short v Durez Div.-Hooker Chems. & PlasticCorp., 280 AD2d 972, 973 [2001]), but work consisting of remedying a common problem isgenerally considered routine maintenance (see e.g. Abbatiello, 3 NY3d at 53; Barbarito v County of Tompkins, 22AD3d 937, 938-939 [2005], lv denied 7 NY3d 701 [2006]). Defendant contends thatthe injury-producing work constituted an inspection of the lift station, rather than the repair ofthat facility, but we note that "it is neither pragmatic nor consistent with the spirit of the statuteto isolate the moment of injury and ignore the general context of the work" (Prats v PortAuth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]). Here, plaintiff was injured while"troubleshooting" an uncommon lift station malfunction, which is a protected activity underLabor Law § 240 (1) (see e.g.Parente v 277 Park Ave. LLC, 63 AD3d 613, 614 [2009]; Pakenham, 58 AD3dat 987-988).
Contrary to the further contention of defendant, the court properly concluded as a matter oflaw that plaintiff's failure to use the tripod and harness was not the sole proximate cause of theaccident, and thus the court properly refused to instruct the jury on sole proximate cause withrespect to those devices. It is well settled that, "[w]here . . . the 'actions [of theworker are] the sole proximate cause of his or her injuries . . . [,] liability underLabor Law § 240 (1) [does] not attach' " (Lovall v Graves Bros., Inc., 63 AD3d 1528, 1529 [2009], quotingWeininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d875 [1998]). Moreover, "where an [owner] has made available adequate safety devices and [aworker] has been instructed to use them," he or she may not recover under section 240 (1) (Cahill v Triborough Bridge & TunnelAuth., 4 NY3d 35, 37 [2004]).
Nevertheless, the mere presence of a safety device somewhere at a work site does not satisfythe requirements of Labor Law § 240 (1) (see Zimmer v Chemung County PerformingArts, 65 NY2d 513, 524 [1985], rearg denied 65 NY2d 1054 [1985]; Williams v City of Niagara Falls, 43AD3d 1426 [2007]). Here, defendant failed to present evidence that plaintiff had beeninstructed to use the tripod and harness (see Beamon v Agar Truck Sales, Inc., 24 AD3d 481, 483 [2005]),or that " 'plaintiff, based on his training, prior practice, and common sense, knew or should haveknown' " to use the tripod and harness (Gimeno v American Signature, Inc., 67 AD3d 1463, 1464 [2009],lv dismissed 14 NY3d 785 [2010]; see Smith v Picone Constr. Corp., 63 AD3d 1716, 1717 [2009]).Further, defendant failed to present evidence that would have permitted the jury to find "thatplaintiff . . . knew . . . that he was expected to use [the tripod andharness]; that he chose for no good reason not to do so; and that had he not made that choice hewould not have been injured" (Cahill, 4 NY3d at 40). The contention of defendant thatthe court erred in admitting in evidence and relying upon testimony of its expert elicited oncross-examination is raised for the first time in its reply brief, and thus it is not properly beforeus (see generally Local No. 4, Intl.Assn. of Heat & Frost & Asbestos Workers v Buffalo Wholesale Supply Co., Inc., 49 AD3d1276, 1278 [2008]).
Finally, we reject defendant's further contention that the court erred in instructing the jurythat "repairing can also include inspection of an integral part of the structure in furtherance ofrepairing an apparent malfunction." That instruction is consistent with PJI 2:217 and the decisionof the Court of Appeals in Prats (100 NY2d at 881-882; see Caraciolo v 800 Second[*3]Ave. Condominium, 294 AD2d 200, 201-202 [2002]).Present—Smith, J.P., Fahey, Carni, Sconiers and Pine, JJ.