| Dahar v Holland Ladder & Mfg. Co. |
| 2010 NY Slip Op 09646 [79 AD3d 1631] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Michael Dahar, Appellant, v Holland Ladder & ManufacturingCompany et al., Respondents. Bechtel Corporation et al., Third-PartyPlaintiffs-Respondents, v West Metal Works, Inc., Third-Party Defendant-Respondent.(Appeal No. 1.) |
—[*1] Landman Corsi Ballaine & Ford P.C., New York City (William G. Ballaine of counsel), fordefendants-respondents Bechtel Corporation and Bechtel National, Inc. and third-partyplaintiffs-respondents. Hodgson Russ LLP, Buffalo (Heather Zimmerman of counsel), for defendants-respondentsWarner G. Martin and Shirley J. Martin.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredNovember 17, 2009 in a personal injury action. The order, among other things, denied plaintiff'scross motion for partial summary judgment.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he allegedly sustained when he fell from a ladder at his employer'sshop while readying a fabricated component for shipment to an off-site construction project. Atthe time of his accident, plaintiff was employed by third-party defendant West Metal Works, Inc.(West Metal) at its fabrication shop (shop) in Cheektowaga, New York. The shop was located ina building that West Metal leased from defendants Warner G. Martin and Shirley J. Martin(collectively, Martins). The written lease between the Martins and West Metal limited the use ofthe leasehold premises to "manufacturing and industrial purposes." The primary business of WestMetal is custom metal fabrication of steel and stainless steel products. At the time of hisaccident, plaintiff was engaged in the final phase of the fabrication of a component part of anuclear waste treatment plant that was being constructed by the United States Department ofEnergy in Richmond, Virginia. Steel fabrication is the "customary occupational work" of plaintiff(Jock v Fien, 80 NY2d 965, 966 [1992]), and it is the "customary business of hisemployer," West Metal (Foster v Joseph Co., 216 AD2d 944, 944 [1995]). Plaintiff'swork at the shop the day of the accident involved cleaning grease and welding residue off of awall module prior to its shipment from the shop to the construction site. The wall module wasfabricated pursuant to a purchase order between West Metal and defendants/third-party plaintiffsBechtel Corporation and Bechtel National, Inc. (collectively, Bechtel defendants). Plaintiff wasinjured during that process when he was descending a ladder and a rung broke.
At the time of his accident, plaintiff was not performing work on any part of the shopbuilding where he was employed. Labor Law § 240 (1), contained within article 10 of theLabor Law, entitled "Building Construction, Demolition and Repair Work," applies to workersengaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of abuilding or a structure." Section 240 (1) does not apply to workers engaged in the fabrication ofcomponent parts that are to be shipped from the fabrication facility to an off-site constructionlocation (see Jock, 80 NY2d at 968; Davis v Wind-Sun Constr., Inc., 70 AD3d 1383 [2010]; Solly vTam Ceramics, 258 AD2d 914 [1999]). Ignoring the context and nature of plaintiff's work,the dissent concludes, notwithstanding those well-settled principles, that plaintiff's work on afabricated component part constituted the protected activity of "cleaning" a "structure" (LaborLaw § 240 [1]). The cases relied upon by the dissent, however, are readily distinguishablefrom the fabrication situation at issue. In Lewis-Moors v Contel of N.Y. (78 NY2d 942[1991], affg 167 AD2d 732 [1990]), the plaintiff was employed on a project involvingthe removal and replacement of a network of telephone poles. The Court of Appeals agreed withthe Third Department that "a telephone pole with attached hardware, cable and support systemsconstitutes a structure within the meaning of . . . section [240 (1)]" (id. at943). In Pino v Robert Martin Co.(22 AD3d 549, 551 [2005]), the plaintiff was removing shelving from a building wall thatwas to be demolished as part of a construction and renovation project. Neither of those casesaddresses the issue whether a partially fabricated component part that is to be shipped to anoff-site construction project constitutes a "structure" pursuant to section 240 (1).
Inasmuch as plaintiff was engaged in a "normal manufacturing process" at a factory building,we conclude that he was not engaged in a protected activity pursuant to Labor Law § 240(1) (Jock, 80 NY2d at 968). Thus, with respect to the order in appeal No. 1, we concludethat Supreme Court properly granted those parts of the motions of the Martins and the Bechteldefendants seeking summary judgment dismissing the Labor Law § 240 (1) claim againstthem and denied those parts of plaintiff's cross motion seeking partial summary judgment onliability with respect to the Labor Law § 240 (1) claim against the Martins and the Bechteldefendants. The Bechtel defendants also submitted evidence in support of their motionestablishing that they are not subject to liability under section 240 (1) either as "owners" (see generally Scaparo v Village ofIlion, 13 NY3d 864, 866-867 [2009]), or as "contractors" (see generally Rauls v DirecTV, Inc., 60AD3d 1337 [2009]), and plaintiff failed to raise a triable issue of fact with respect thereto(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The court also properly granted that part of the motion of the Martins seeking summaryjudgment dismissing the Labor Law § 200 claim and common-law negligence cause ofaction against them. The Martins established their entitlement to judgment as a matter of law bydemonstrating that they did not exercise supervisory control over plaintiff's work and that they[*2]neither created nor had actual or constructive notice of theallegedly dangerous condition that caused the accident, and plaintiff failed to raise a triable issueof fact in opposition (see Alnutt v J&EElec., 28 AD3d 1214 [2006]).
With respect to the order in appeal No. 2, we conclude that the court properly granted themotion of the Bechtel defendants seeking leave to reargue those parts of their motion forsummary judgment dismissing, inter alia, the Labor Law § 200 claim and common-lawnegligence cause of action against it and, upon reargument, the court properly granted those partsof its motion. The Bechtel defendants "met [their] burden of establishing that [they] did notsupervise or control the work resulting in plaintiff's injury, and plaintiff[ ] failed to raise a triableissue of fact" in opposition (Cooper vSonwil Distrib. Ctr., Inc., 15 AD3d 878, 878-879 [2005]).
All concur except Lindley and Green, JJ., who dissent in part and vote to modify inaccordance with the following memorandum.
Lindley and Green, JJ. (dissenting in part). We respectfully dissent in part. Contrary to themajority, we conclude in appeal No. 1 that Supreme Court erred in granting that part of themotion of defendants Warner G. Martin and Shirley J. Martin (collectively, Martins) seekingsummary judgment dismissing the Labor Law § 240 (1) claim against them and in denyingthat part of plaintiff's cross motion seeking partial summary judgment on liability with respect tothe Labor Law § 240 (1) claim against the Martins. Plaintiff established that the Martinsare "owners" within the meaning of section 240 (1) (see generally Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333,339-340 [2008]). In addition, "[u]nder Labor Law § 240 (1), a 'structure' is 'any productionor piece of work artificially built up or composed of parts joined together in some definitemanner,' " and thus the wall module that plaintiff was cleaning when he fell is a "structure"within the meaning of the statute (Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943[1991]; see Pino v Robert MartinCo., 22 AD3d 549, 552 [2005]). Plaintiff further established that he was engaged in aprotected activity, i.e., "cleaning," at the time of the accident, despite the fact that his work wasnot related to building construction, demolition or repair. "The crucial consideration undersection 240 (1) is not whether the cleaning is taking place as part of a construction, demolition orrepair project, or is incidental to another activity protected under section 240 (1) . . .Rather, liability turns on whether the particular [cleaning] task creates an elevation-related risk ofthe kind that the safety devices listed in section 240 (1) protect against" (Broggy vRockefeller Group, Inc., 8 NY3d 675, 681 [2007]). Here, plaintiff met his burden ofestablishing that he was exposed to an elevation-related risk and that he was not provided with anadequate safety device (see Swiderska vNew York Univ., 10 NY3d 792 [2008]). The Martins failed to raise a triable issue offact sufficient to defeat the cross motion (see Zuckerman v City of New York, 49 NY2d557, 562 [1980]). We therefore would modify the order in appeal No. 1 accordingly.Present—Scudder, P.J., Smith, Carni, Lindley and Green, JJ.