| Flores v ERC Holding LLC |
| 2011 NY Slip Op 06187 [87 AD3d 419] |
| August 4, 2011 |
| Appellate Division, First Department |
| Ricardo Flores, Appellant, v ERC Holding LLC et al.,Respondents. |
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White, Quinlan & Staley, LLP, Garden City (William R. White of counsel), for ERC HoldingLLC, respondent. Chesney & Murphy, LLP, Baldwin (Henry D. Nelkin of counsel), for 458 E. 144th StreetRealty Corp., respondent. Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for WestStar Construction Corp., respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered June 15, 2010, which,to the extent appealed from as limited by the briefs, granted defendants ERC Holding LLC's andWest Star Construction Corp.'s motions for summary judgment dismissing the Labor Law§ 240 (1) and § 241 (6) claims, upon a search of the record, awarded defendant 458E. 144th Street Realty Corp. summary judgment dismissing the complaint as against it, anddenied plaintiff's motion for summary judgment on his Labor Law § 240 (1) cause ofaction, unanimously affirmed, without costs.
Plaintiff, a steel framing laborer employed by nonparty subcontractor Kriti Contracting, wasinjured at a facility in Bronx County that Kriti leased from defendant 458 E. 144th Street RealtyCorp. for the storage of its equipment and materials. Kriti had been retained to perform steelframing work by defendant West Star Construction, the general contractor for a project to erect abuilding on property owned by defendant ERC in Queens County. Plaintiff reported for work atKriti's Bronx facility, as he regularly did, where he was directed to cut several 17-foot steelbeams from 40-foot lengths. After completing the first cut, he was instructed by Kriti's principal(who was also West Star's principal) to affix the 700-pound steel beam to the bucket of abackhoe so that the beam could be lifted onto a truck for transport to the Queens constructionsite. Plaintiff was injured when the backhoe shifted and tilted causing the beam to come loosefrom the cables that bound it, fall to the ground and bounce up, striking plaintiff, who washelping to guide the beam with his hands. There is evidence in the record that there was unevenground and debris in the storage yard and that the cables and chains holding the beam to thebackhoe bucket could have been better secured. There is also evidence that other beams weretransported to the Queens site from the Bronx storage yard for use in construction that day, thatplaintiff had cut one beam to [*2]the requisite size before he wasinjured, and that plaintiff was to have gone in the transport truck to work at the Queensconstruction site for the rest of the day.
Performing construction work for purposes of Labor Law § 240 (1) (see Joblon vSolow, 91 NY2d 457, 465 [1998] [material alteration to the premises]) and working at aconstruction site for purposes of Labor Law § 241 (6) (see Mosher v State of NewYork, 80 NY2d 286 [1992] [repaving project]) are distinguished from fabricating andtransporting materials to be used in connection with ongoing work at a construction site.Dispositive is that at the time of his injury, plaintiff was engaged in the fabrication and loading ofsteel at his employer's Bronx facility, not in performing construction work at the Queens site(Jock v Fien, 80 NY2d 965, 968 [1992] [fabrication not involving any constructionactivity at the time of injury]; Dahar vHolland Ladder & Mfg. Co., 79 AD3d 1631 [2010] [worker engaged in normalmanufacturing process at employer's facility]; see also Pirog v 5433 Preston Ct., LLC, 78 AD3d 676 [2010][stockpiling pipes at storage facility was neither construction work nor work performed in aconstruction area]; cf. Nagel v Metzger, 103 AD2d 1, 8 [1984] [hoisting and landclearing constitute construction work under Labor Law § 241 (6)]).
Cases extending Labor Law protection to injuries sustained at the work site while handlingmaterials essential to the construction project (e.g. Brogan v International Bus. Machs.Corp., 157 AD2d 76, 79 [1990] [transport from one end of a building to the other"necessitated by and incidental to the construction"]) or while fabricating material integral to theconstruction work at a separate on-site facility (e.g. Shields v General Elec. Co., 3 AD3d 715 [2004] [fabricationbuilding 100 yards from building under construction]) are distinguishable by such factors asphysical proximity and common ownership and operation of the premises. Applying the LaborLaw to fabrication performed and loading of steel beams onto a truck for transport some 12 milesaway at a facility that is independently owned and operated would be an untoward extension ofthe protection afforded by the Legislature (Martinez v City of New York, 93 NY2d 322,326 [1999]; see also Adams v Pfizer, Inc., 293 AD2d 291, 292 [2002], lv denied99 NY2d 511 [2003]). Thus, "at the time of the accident, the plaintiff was not engaged inconstruction work within the meaning of Labor Law § 240 (1) and was not working in aconstruction area within the meaning of Labor Law § 241 (6)" (Pirog, 78 AD3d at677), and these claims were properly dismissed.
In addition, since plaintiff's accident occurred at an off-site storage yard that ERC did notown and there is no evidence that ERC controlled the storage yard in any manner, ERC is notsubject to liability under section 240 (1) in any event (see Frierson v Concourse PlazaAssoc., 189 AD2d 609, 611 [1993]). Nor is defendant 458 E. 144th Street Realty Corp.,which owned the storage yard, subject to liability under the statute, since it was not aconstruction site owner that had hired a construction contractor (see id.). Theconstruction work was being performed on ERC's property in Queens, and it was ERC, not 458E. 144th Street Realty Corp., that hired West Star as the general contractor. Concur—Tom,J.P., Andrias, Friedman, Abdus-Salaam and RomÁn, JJ.