| Soto v J. Crew Inc. |
| 2012 NY Slip Op 04090 [95 AD3d 721] |
| May 29, 2012 |
| Appellate Division, First Department |
| Jose A. Soto, Appellant, v J. Crew Inc. et al.,Respondents. |
—[*1] Mauro Lilling Naparty LLP, Great Neck (Anthony F. DeStefano of counsel), forrespondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 26,2011, which granted defendants' motions for summary judgment dismissing the complaint, anddenied plaintiff's cross motion for summary judgment on the issue of liability on his Labor Law§ 240 (1) cause of action, affirmed, without costs.
Plaintiff, an employee of a commercial cleaning company that contracted with the J. Crewdefendants to provide general daily maintenance services to their store, was injured when he felloff an A-frame ladder while dusting the top of a shelf. The dismissal of the Labor Law §240 (1) cause of action was proper. The dusting of the shelf constituted routine maintenance andwas not the type of activity that is protected under the statute (see Diaz v Applied DigitalData Sys., 300 AD2d 533 [2002]). The term "cleaning" as used under the statute is not to beas broadly applied as plaintiff suggests (see Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521, 526,[2012]). Concur—Mazzarelli, J.P., DeGrasse, Manzanet-Daniels and Román, JJ.
Catterson, J., concurs in a separate memorandum as follows: I concur because I amconstrained by the Court of Appeals' recent holding in (Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521 [2012]), which,nevertheless, in my opinion cannot be reconciled with extensive recent precedent of the Court orthe plain wording of Labor Law § 240 (1).
The plaintiff correctly asserts that Swiderska v New York Univ. (10 NY3d 792 [2008]) and Broggy v Rockefeller Group, Inc. (8NY3d 675 [2007]) both stand for the proposition that commercial cleaning is a protectedactivity under Labor Law § 240 (1).
In Broggy, Judge Read, writing for a unanimous Court, began the analysis by quoting[*2]section 240 (1): "[A]ll contractors and owners and theiragents . . . in the erection, demolition, repairing, altering, painting, cleaningor pointing of a building or structure shall furnish or erect, or cause to be furnished or erected forthe performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,braces, irons, ropes, and other devices which shall be so constructed, placed and operated as togive proper protection to a person so employed" (Broggy, 8 NY3d at 680 at 716-717).
The Court next held that, "[t]hus, 'cleaning' is expressly afforded protection under section240 (1) whether or not incidental to any other enumerated activity."(8 NY3d at 860.) The Courtmade plain that its prior decisions in Joblon v Solow (91 NY2d 457 [1998]) andPanek v County of Albany (99 NY2d 452 [2003]) were not to the contrary. BothJoblon and Panek "dealt with the meaning of the statutory term 'altering,' not'cleaning.' " (Broggy, 8 NY3d at 681.) " 'Altering' and 'cleaning' are discrete categories ofactivity under section 240 (1)." (Id.)
In Broggy, the defendants contended that the Court's prior holding in Bauer vFemale Academy of Sacred Heart (97 NY2d 445 [2002]) should be construed as limitingsection 240 (1) protection in a window cleaning context to exterior windows. The Court rejectedthis distinction and set out the analytical framework to be employed when considering section240 (1) protections: "We see no reason to limit Bauer to its facts—exterior windowwashing of a nondomestic character—as defendants urge. While interior window washingmay not routinely entail the elevation-related risks that exterior window washing almostinvariably poses, assigning liability under section 240 (1) on this basis would create an arbitrarydividing line unfaithful to legislative intent. The crucial consideration under section 240 (1) isnot whether the cleaning is taking place as part of a construction, demolition or repair project, oris incidental to another activity protected under section 240 (1); or whether a window's exterioror interior is being cleaned. Rather, liability turns on whether a particular window washing taskcreates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protectagainst." (Broggy, 8 NY3d at 681.) It seems patent that while window cleaning was theunderlying factual predicate for the Broggy holding, the above-quoted analysis is in noway analytically dependent on the cleaning of windows qua windows. If we were to substitute thecleaning of window blinds, valances, sashes or case moldings in situ in place of theBroggy windows themselves, the result under the Court's analysis would have been thesame.
The holding in Swiderska tracks and cites Broggy. Like Broggy, theCourt in Swiderska did not limit "cleaning" to windows. The factual predicate for theapplication of section 240 (1) was "part of a commercial cleaning contract" that required theplaintiff to clean the interior side of a 10-foot-high window. (Swiderska, 10 NY3d at792.) The Court found that to clean the window, the plaintiff was required to "climb upon piecesof furniture in order to complete her work—creating an elevation-related risk—andshe was not provided a ladder, [*3]scaffold or other safety deviceof the kind contemplated under the statute." (10 NY3d at 793.)
The holding in Dahar appears to be a significant sea change in section 240 (1)jurisprudence that overrules sub silentio the analysis of Broggy. In Dahar,the Court acknowledges that Broggy stands for the proposition that "the term 'cleaning'. . . is not limited to cleaning that was 'part of a construction, demolition, or repairproject.' " (Dahar, 18 NY3d at 525, quoting Broggy, 8 NY3d at 680.) Whereupon,the Court then proceeds to limit its analysis ("[w]e have never, however, gone as far as plaintiffhere asks us to go—to extend the statute to reach a factory employee engaged in cleaning amanufactured product") in direct contravention of what is, heretofore, considered doctrine.(Dahar, 18 NY3d at 525.)
The Court of Appeals holding in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009,Lippman, Ch. J.]), is instructive. In Runner, the Court framed the general scope of section240 (1): "[T]he purpose of the strict liability statute is to protect construction workers not fromroutine workplace risks, but from the pronounced risks arising from construction worksiteelevation differentials, and, accordingly, . . . there will be no liability under thestatute unless the injury producing accident is attributable to the latter sort of risk."(Runner, 13 NY3d at 603, citing Rocovich v Consolidated Edison Co., 78 NY2d509, 514 [1991]). The Runner Court held that there is an inquiry common to all section240 (1) cases: "[W]e think the dispositive inquiry framed by our cases does not depend upon theprecise characterization of the device employed or upon whether the injury resulted from a fall,either of the worker or of an object upon the worker. Rather, the single decisive question iswhether plaintiff's injuries were the direct consequence of a failure to provide adequateprotection against a risk arising from a physically significant elevation differential."(Runner, 13 NY3d at 603.)
The Runner Court could not have been clearer that what is dispositive is the activitybeing performed by the worker and whether the injury resulting from performance of that activityarose from the application of Newton's first law of gravity: "whether the harm flows directlyfrom the application of the force of gravity to the object." (13 NY3d at 604.)
Up to this point in time, the inquiry in section 240 (1) claims appeared settled. To recap, inBroggy, the Court held that "cleaning" was, in and of itself, a protected activity under thestatute; in Runner the Court held that it is the nature of the activity and injury togetherwith gravity's impact on both, that determines coverage under section 240 (1).
The holding in Dahar is at odds with both holdings. In Dahar, the focus hasshifted from i) that "cleaning" is a protected activity and ii) the application of gravity to thatactivity, to an analysis based solely on the locus of the activity and the nature of the object beingcleaned.
The Dahar Court bolsters this position shift with the observation that "every case wehave decided involving 'cleaning' as used in Labor Law § 240 (1), with a single exception,has involved cleaning the windows of a building." (18 NY3d at 525.) Of course, merely becausethe [*4]fact patterns of previous section 240 (1) "cleaning" casesinvolved windows does not materially advance the Dahar rationale. In none of the casescited by the Court is the focus of the analysis on the object being cleaned as opposed to theconsideration of the gravity related risks attendant to what type of cleaning was being performed.It would seem that Broggy, Runner, and Swiderska compel the exactopposite conclusion.
Finally, a simple hypothetical demonstrates the mischief attendant to the Daharholding. Worker "A" is compelled to clean the top of a 50-foot-tall widget. Worker "B" isrequired to clean the top of a 12-foot-tall window. Both workers are exposed to a gravity relatedrisk of injury and both are "cleaning" for the purposes of section 240 (1). Yet, underDahar, if worker "A" plummets to misfortune whilst cleaning, he or she is not affordedprotection of section 240 (1). Worker "B" on the other hand, by the simple fact that he or she iscleaning a window, is protected by section 240 (1). In my view, the Court in Dahar couldnot have intended such a wholesale retreat from Broggy, Runner, andSwiderska. [Prior Case History: 2011 NY Slip Op 32518(U).]