Opinion
No. 5681/10.
2013-01-23
Jose QUINTANILLA, Plaintiff, v. UNITED TALMUDICAL ACADEMY TORAH V'YIRAH, INC., United Talmudical Academy Torah V'Yirah Rabbinical Inc., and World Council of Orthodox Jewish Communities, Inc., Defendants.
Jacob Oresky & Assoc. PLLC, Bronx, for Plaintiff. Kenny & Zonghetti, LLC, York, for Defendant.
Jacob Oresky & Assoc. PLLC, Bronx, for Plaintiff. Kenny & Zonghetti, LLC, York, for Defendant.
DAVID I. SCHMIDT, J.
The following papers numbered 1 to 8 read on these motions:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1–2, 3–4
Opposing Affidavits (Affirmations) 5–7
Reply Affidavits (Affirmations) 8
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, defendants United Talmudical Academy Torah V'Yirah Inc. and United Talmudical Academy Torah V'Yirah Rabbinical, Inc. (United) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff Jose Quintanilla (plaintiff). Plaintiff moves, pursuant to CPLR 3212, for partial summary judgment on his third cause of action under Labor Law § 240(1).
Facts
On December 20, 2009, plaintiff sustained multiple injuries in a fall from the rooftop of school building owned by United and located at 243 Keap Street in Brooklyn. At the time of the accident, plaintiff was employed by Quality Floorshine Corporation, owned by Mr. Yidel Falkowitz. United rented the auditorium in the building to “For The Pardes Incorporation (Pardes),” a catering company, for various events such as weddings and bar mitzvahs, and Pardes employed Mr. Mechel Rottenstein as its maintenance manager. Mr. Rottenstein also volunteered for United by preparing for events which took place in the school auditorium. Mr. Wertheimer, employed by United, was in charge of overall maintenance for the building.
Testimony of Mr. Rottenstein
Mr. Rottenstein testified that on December 20, 2009, at approximately 12 P.M., he arrived at the auditorium which was being prepared for a wedding to take place at 6:00 P.M that evening. As he entered the auditorium, a cleaning man told him that it was “raining from the ceiling” onto the auditorium floor. Mr. Rottenstein looked up and observed two or three wet areas in the ceiling, approximately 40 to 50 feet apart, which were continuously dripping onto the auditorium floor, and a cleaning person mopping up some water.
In order to locate the source of the leaks, Mr. Rottenstein climbed through a classroom on the second floor of the building onto the roof where there were four or five attics with peaked roofs. He then walked through a small door which led to one of the attics which was located above the auditorium. The attic was 50 feet by 8 feet, and had two entrances, one in the front, through which Mr. Rottenstein entered, and one in the back. In the center of the attic, there was a steel walkway or catwalk, approximately three or four feet wide, which extended 50 feet in length. On either side of the walkway, there was a dropped ceiling covered with wooden beams, which Mr. Rottenstein testified would not support someone standing or walking. In addition, there was a railing on the left side of the walkway when facing the front entrance. Because the attic had a peaked roof, Mr. Rottenstein could stand in the middle of the attic but would have to bend down if he walked to the side.
Mr. Rottenstein testified that at the front entrance, the walkway began “right under the door” in the center of the attic. At the rear entrance, however, one could not walk directly onto the walkway because the walkway began “just to the left of the door opening,” making it necessary to take a “little” jump to the left to reach the walkway when entering. Mr. Rottenstein also stated that if one were to walk directly into the rear entrance without making the jump, one would be walking on the dropped ceiling.
Mr. Rottenstein observed a nearly melted one-inch “pile of snow” near the front left corner of the attic as a result of an earlier heavy snowstorm, and testified that the walkway near this door was “full of snow,” that the dropped ceiling was soaked on both sides of the attic, and that it was the dropped ceiling tiles which were leaking water onto the auditorium floor.
The snow had entered the attic near the front and the back entrances because the doors to the entrances were bent and not properly sealed. Mr. Rottenstein left the attic and made several telephone calls to United regarding the leaks, and someone advised him that Quality Floorshine was coming to assist him “wet dry” the snow and water.
Mr. Rottenstein also testified that everything in the vicinity of the front attic door was covered with “just a little bit of snow .”
At approximately 3:00 or 4:00 P.M., Mr. Falkowitz, whose business was “cleaning,” as well as plaintiff and three other workers arrived at the building, and Mr. Rottenstein brought them to the second floor. Mr. Rottenstein testified that the workers were “Spanish men” and thought that they spoke English. The workers were carrying equipment which included two “wet vacs” and a mop with cloth on the bottom. Mr. Rottenstein, who spoke only a few Spanish words, explained in English “how it look[ed] upstairs” and told Mr. Falkowitz and the workers that they could only walk on the walkway when inside the attic, which Mr. Falkowitz then told the workers in English, using some Spanish words.
After climbing through the window of the classroom to the front of the attic, Mr. Rottenstein showed plaintiff and the workers where the walkway was and both he and Mr. Falkowitz again told the workers that they were only allowed to walk on the walkway. Mr. Rottenstein said the workers were “talking between themselves also that you [are] only allowed to walk on this walkway” and that Mr. Falkowitz explained that:
Mr. Rottenstein testified that Mr. Falkowitz spoke English fluently.
“only on one side you could go straight on the walkway, the other side of the attic you could not go on to the walkway. There's a door over there, but the door doesn't lead you to the walkway.”
With respect to these instructions, the following colloquy took place:
Q: Did you directly communicate with [the workers]?
Mr. Rottenstein: I talked to them also and [Mr. Falkowitz] also talked to them. We were like talking together. He was explaining to them and I was also saying yes, you're not allowed to go there. He was explaining, you have to watch where you walk. I was just throwing in my two cents, but not really telling them what they have to do. When I got upstairs I showed them, yes, over there, no. One or two guys didn't speak that well, so I showed them with hand language and everything, that over here you're not allowed to walk, only on the walkway.
Q: Do you know if they understand English, these workers?
Mr. Rottenstein: By that [sic] it looked to me that they did understand whatever I was saying and [Mr. Falkowitz] was saying.
Q: Did they speak English to you, the workers?
Mr. Rottenstein: One or two for sure. I didn't deal with all the workers. Whoever I dealt with, they did understand English.
When Mr. Rottenstein was later asked whether he thought plaintiff understood English or was one of the workers who did not understand English, he responded: “It looks to me that they did understood, but I know they don't understand the best English so I was talking to them [in] English and hand language.”
Mr. Rottenstein told the workers that they could not walk off the walkway because he knew the surface on either side of the walkway was not sturdy enough to stand on, was not safe, and that walking off the walkway was a falling hazzard.
Mr. Rottenstein later testified that at the time of his deposition, he would not walk on the dropped ceiling, and that he did not know whether he thought the dropped ceiling was safe before the accident, but knew it was not safe afterward because the accident had occurred.
Mr. Rottenstein and Mr. Falkowitz then instructed the workers that they would split into two groups. Mr. Falkowitz would take two workers with him to the front of the attic and Mr. Rottenstein would take plaintiff and another worker with him to the back of the attic. One man from each group was to enter the attic with the hose to extract water while the other man from the group was to remain outside the attic in order to remove water from the bucket in the vacuum when it became full.
Before work began, Mr. Falkowitz and the other two workers were stationed in the front of the attic, and Mr. Rottenstein, plaintiff, and another worker were at the rear of the attic, setting up their vacuums. Mr. Rottenstein explained to plaintiff that he was supposed to work with the hose inside the attic. However, he gestured with his fingers for plaintiff to accompany him to enter the attic through the front entrance. He did this because the walkway at the back entrance was not directly underneath the back door, but was directly under the door in the front of the attic, and was an “easy way to go.” To illustrate, Mr. Rottenstein opened the rear door and showed plaintiff and the other worker that the “door is not above the walkway.” Plaintiff and his coworker looked inside the attic and Mr. Rottenstein testified that they “were both understanding that they shouldn't go inside.”
Immediately afterward, Mr. Rottenstein began to walk to the front of the attic, and did not look behind him to see if plaintiff was following him. After walking approximately six feet, he heard another worker screaming, “he fell, he fell.” Mr. Rottenstein testified that instead of following him, plaintiff walked into the attic through the rear entrance. Mr. Rottenstein called an ambulance, which had already arrived when he came down to the auditorium where plaintiff had fallen.
Mr. Rottenstein testified that he saw that plaintiff had fallen through the dropped ceiling; that the distance from the dropped ceiling to the auditorium floor was approximately 30 feet; that plaintiff was not provided with a safety harness, safety rope, safety belt or any type of safety equipment; and that at the time of the accident, it was not dark outside or inside the attic.
Plaintiff's Testimony
Plaintiff testified that he was employed by Quality Floorshine Corporation on December 30, 2009. At 2:00 P.M. that day, Rafael, a coworker, called and told plaintiff that he would be cleaning snow and water from a roof. At 3:00 P.M., plaintiff went to the work yard, where he met with two coworkers and his boss, who drove everyone to the building where they were to work. Plaintiff's boss did not speak Spanish but plaintiff's coworker acted as a translator for them.
When plaintiff arrived at the building, he walked up five flights of stairs. He carried a hose and a mop and his coworkers carried two vacuums, three mops, three “extensions hoses” and other equipment to extract water. Plaintiff walked through a classroom to get onto the roof, and then walked to a little house-type structure on top of the roof, which was like a pyramid. Once on the roof, plaintiff knew where to remove the snow and clean out the water because he could see the snow and water from the outside and because his boss told him to “go and take the water with the vacuum” and “pointed out to get in there.”
Another man on the roof, whom plaintiff described as an “associate of the boss” pointed to the structure and told plaintiff to clean the water where it was leaking inside the structure. This associate did not speak Spanish and did not give plaintiff instructions in English. With respect to this communication, plaintiff testified as follows:
Q:Did he speak Spanish, this associate of the boss?
A:No.
Q:Did he give you instructions in English?
A:No.
Q:Then how did you get these instructions from him?
A:Over the phone through Rafael.
* * *
Q:Did you have any communication on the roof with this other individual who was dressed like the boss?
A:No.
Q:So the only instructions you got were from Rafael?
A: Nobody gave me any instructions. I was just called and told what kind of job was going to be done ” (emphasis added).
* * *
Q:And who told you when you got on the roof where to go?
A:One of the boss' associates.
Q:And did he tell you that in Spanish, in English, or some other way?
A:I don't know because we were already on the roof where were going to clean.”
Thereafter, plaintiff bent down and entered the structure through a small opening. According to plaintiff, there was no lighting on the roof, the structure was dark, he did not have a flashlight, and he could not see inside the structure when he entered it. When he told the boss' associate that there was no light, the associate responded “[no] go.”
Plaintiff entered the structure with a hose, mop and vacuum in order to pump up the water from the melting snow and ice. Once inside the structure, he took three or four steps and fell. Plaintiff first testified that he did not know if he walked straight or turned to the left or the right, but then testified that he walked straight into the attic and did not notice any difference in the walking surface or its height, stating that it was flat. Before entering the structure, he was not given any safety equipment, and no one gave him any instructions to stay on the walkway or told him “where to walk or where not to walk.” However, he testified that he “felt safe because we were working on the roof. We were not working on any side or in a dangerous area .”
Plaintiff explained that he fell straight through the ceiling to the first floor of the building. He testified that due to his weight and the speed of the fall, he made a hole in the roof of the structure and fell through that hole. When asked whether that hole was made with his feet or some other part of his body, he replied, “I don't know. When I was walking I fell and I don't know how did [sic] it happen.” Plaintiff went on to explain that he made a second hole, approximately two floors below the first hole. Plaintiff ultimately landed on the floor of the auditorium that was located on the first floor of the building. He remained on the floor for 30 minutes until the fire department and ambulance arrived
Affidavit of Mr. Falkowtiz
Mr. Falkowitz affirms in his sworn affidavit that on December 30, 2009, he received a call to “clean up water” on the roof of 235/255 Keap Street in Brooklyn, New York. He states that it had been reported to him that “melting snow was leaking from one of the attics on top of the building into the building's auditorium;” that he came with several workers, including plaintiff; and that someone from United brought them to the roof and showed them the attic where the leaks were coming from. Mr. Falkowitz further affirms that he stood at the front door of the attic and showed the workers the metal walkway inside the attic which began at the front door. The representative from United then took plaintiff to the back part of the attic so that he could enter the attic through the rear entrance and start working. Mr. Falkowitz affirms that he remained at the front part of the attic. He states that he did not know that the walkway did not reach the rear attic door. A few minutes later, he heard a commotion and learned that plaintiff entered the rear attic door, and fell to the auditorium below.
Subsequently, plaintiff commenced the instant action for personal injuries alleging violations of Labor Law §§ 240(1), 240(2), 241(6), and 200, as well as common-law negligence. Defendants joined issue in May, 2010. After discovery was completed, defendant moved to dismiss the complaint in its entirety, and plaintiff cross-moved for partial summary judgment on his Labor Law §§ 240(1) and (2) causes of action. These motions are now before the court.
Plaintiff does not address his claim under Labor Law § 240(2).
Plaintiff moves for partial summary judgment on his Labor Law § 240(1) cause of action. In support of his motion, relying primarily upon Broggy v. Rockefeller Group, Inc. (8 NY3d 675 [2007] ) and Swiderska v. New York Univ. (10 NY3d 792 [2008] ), plaintiff argues that at the time of the accident, he was engaged in a elevation-related activity, namely “cleaning,” which is specifically protected by Labor Law § 240(1), and that defendants' failure to provide him with any safety devices proximately caused his injuries. Plaintiff also argues that defendants cannot prevail on a recalcitrant worker defense because there is no evidence that he was given instructions to use a safety device, that such device was readily available, and that he chose not to use it. Plaintiff also asserts that his alleged disobedience in entering the attic through the rear entrance does not constitute a refusal to use an available safety device.
Defendants move for summary judgment dismissing the complaint in its entirety. In support of that branch of their motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, defendants argue that the statute does not apply because plaintiff was performing routine maintenance in a non-construction, non-renovation context when he fell. In particular, defendant argues that the Appellate Division, Second Department has already held in Garcia v.. Piazza (16 AD3d 547 [2005] ) and Paciente v. MBG Dev., Inc. (276 A.D.2d 761 [2000] ) that snow removal is not a covered activity under the statute.
In opposition to defendants' motion, plaintiff argues that the cases cited by defendants were decided prior to Broggy; that defendants fail to address Swiderska, which held that the commercial cleaning of the interior of a 10–foot window in a school dormitory was an activity covered under the statute; and that in any event, his task of cleaning and extracting water “was also part of, and incidental to” repairing and altering the attic doors.
In opposition to plaintiff's motion, defendants argue that Broggy does not stand for the proposition that “cleaning” is expressly afforded protection under the statute because its holding is limited to cleaning the windows of a building, which the Court of Appeals has reaffirmed in Dahar v. Holland Ladder & Mfg. Co. (18 NY3d 521 [2012] ). Moreover, assuming the court finds that plaintiff was engaged in a covered activity under the statute, defendants assert that there are material questions of fact as to whether the lack of a safety device was the proximate cause of plaintiff's fall. In this regard, defendants argue that plaintiff is not entitled to summary judgment where he testified inconsistently and with little certainty as to the events surrounding his fall (i.e. whether the walkway malfunctioned or whether he fell because he did not stand on it) and where plaintiff claimed that it was dark inside the attic and Mr. Rottenstein testified that it was lighted. Lastly, defendants contend that plaintiff was not engaged repairing the improperly sealed doors because the doors were repaired only after and in response to the accident.
In his reply, plaintiff reiterates that at the time of his fall, he was both cleaning and attempting to “repair [and/or]fix” an active leak in a non-residential building in an emergency non-routine situation, which are both protected activities under the statute; that the question of whether a particular activity constitutes a “repair,” “cleaning,” or routine maintenance must be determined on a case-by-case basis; and that there are no material questions of fact as to whether his conduct was the sole proximate cause of his accident because he was not provided with any safety devices when faced with the foreseeable risk of stepping onto and falling from the dropped ceiling.
Labor Law § 240(1) provides, in pertinent part, that:
“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the 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 to give proper protection to a person so employed.”
“Labor Law § 240(1) imposes liability upon owners and contractors who violate the statute by failing to provide or erect necessary safety devices for the protection of workers exposed to elevation-related hazards, where such failure is a proximate cause of the accident” (Henry v. Eleventh Ave., L.P., 87 AD3d 523, 524 [2011] ). “The duty imposed by Labor Law § 240(1) is nondelegable and ... an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500 [1993] ). Although the statute was specifically “designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Ross, 81 N.Y.2d at 501), “[t]o impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries” (Silvas v. Bridgeview Invs., LLC, 79 AD3d 727, 731 [2010] [internal quotation marks and citations omitted] ). Moreover, “[e]ven when a worker is not recalcitrant' ... there can be no liability under section 240(1) when there is no violation and the worker's actions ... are the sole proximate cause' of the accident” (Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc, 1 NY3d 280, 290 [2003] ).
Further, as that statute indicates “Labor Law § 240(1) protects workers from elevation-related hazards while they are involved in certain enumerated work activities” (Fox v. H & M Hennes & Mauritz, L.P., 83 AD3d 889, 890 [2011], citing Panek v. County of Albany, 99 N.Y.2d 452 [2003] ). “Thus, where a worker is engaged in routine maintenance, the statute is inapplicable ( id., citing Smith v. Shell Oil Co., 85 N.Y.2d 1000 [1995] ). “[R]outine maintenance for purposes of the statute is work that does not rise to the level of an enumerated term such as repairing or altering” (Prats v. Port Auth., 100 N.Y.2d 878, 882 [2003] ). “However, the issue of whether any particular task falls within section 240(1) must be determined on a case-by-case basis, depending on the context of the work' “ ( id., quoting Prats, 100 N.Y.2d at 883).
As a threshold matter, plaintiff has made a prima facie showing that he was engaged in a protected activity at the time of his accident. As the Court of Appeals held in Broggy, “cleaning' is expressly afforded protection under section 240(1) whether or not incidental to any other enumerated activity” (Broggy, 8 NY3d at 680). In Broggy, a worker was standing with one foot on a desk and the other foot on a windowsill while cleaning the interior of a 4 by 6 foot window in an office building. As the worker lifted the bottom sash of the window and moved his hand away, the sash unexpectedly slammed down. The worker tried to move his foot out of the way but his foot hit the back ledge of the desk, causing him to lose his balance, and to fall backwards onto the desk and then the floor. In determining whether the worker's activity was covered under section 240(1), the Court of Appeals distinguished between domestic residential cleaning, which is not protected under Labor Law § 240(1) and the cleaning of commercial buildings and structures, which is protected under the statute ( Robbins v. Rye Real Estate Assocs., LLC, 2012 U.S. Dist. LEXIS 147529, * 6 [SD N.Y.2012] ). Specifically, Broggy cited Brown v. Christopher (87 N.Y.2d 938, 939 [1996] ), in which the court had held that the routine cleaning of five windows in a cooperative apartment was not a covered activity under the statute. The court stated that Brown had not “preclud[ed] liability on the ground that the exterior window cleaning was not part of a construction, demolition, or repair project” ( id.). Instead, Brown held that “routine, household window washing” was “not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240(1)” ( id.). Further, the court noted that in Bauer v. Female Academy of Sacred Heart (97 N.Y.2d 445 [2002] ), it had allowed a § 240(1) cause of action to go forward where the plaintiff fell while cleaning the exterior of a third-story window at a school, and explained that it saw no basis “to limit Bauer to its facts, [namely] exterior window-washing of a nondomestic character” ( id. at 681). The court concluded that the “[t]he crucial consideration under section 240(1) is not whether the cleaning is taking place as part of a construction, demolition or repair project, or is incidental to another activity protected under section 240(1); or whether a window's exterior or interior is being cleaned ... Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against” ( id.). Despite the foregoing, the plaintiff in Broggy had not demonstrated that an elevation-related risk existed, and that the owner or contractor did not provide adequate safety devices.
Following Broggy, in Swiderska (10 NY3d 792), the court held that commercial window cleaning comparable to the window cleaning performed in Broggy was encompassed within Labor Law § 240(1) if it created the elevation-related risk the statute was intended to address ( id.). Since the plaintiff's activity in Swiderska created an elevation-related risk—because she was not provided with a ladder or any other safety device—she was protected under the statute ( id.).
Lastly, and in and contrast to Broggy and Swiderska, the Court of Appeals held this year that a plaintiff who fell from a ladder while cleaning a seven-foot steel module manufactured by his employer was not engaged in “cleaning” as that term is defined by the statute (Dahar, 18 NY3d 521). The court explained that while it had “rejected the idea that Labor Law § 240(1) applies only to work performed on construction sites” ... it had never extended the statute “to reach a factory employee engaged in cleaning a manufactured product” ( id. at 525). The court further noted that with one exception, every case it had decided “involving cleaning' as used in Labor Law § 240(1) ... [had] involved cleaning the windows of a building” ( id. at 525–526),
that “even in window-cleaning cases, [it had not] extended the statute's coverage to every activity that might fit within its literal terms,” and that it had previously held and “reaffirmed in Broggy, that routine household window washing is not covered” ( id. at 526).
The court cited the following case law: Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316 [2009] [defendant not liable to plaintiff who fell from desk on which she was standing while cleaning the inside of its leased office building window because defendant did not hire plaintiff's employer to clean the window and exercised no control over plaintiff's work]; Swiderska, 10 NY3d 792;Broggy; 8 NY3d 675;Bauer, 97 N.Y.2d 445;Brown, 87 N.Y.2d 938;Connors v. Boorstein, 4 N.Y.2d 172 [1958] [fall from stepladder by domestic while cleaning a storm window on the outside of her employer's private residence was not a covered activity under the statute]; and Koenig v. Patrick Const. Corp., 298 N.Y. 313 [1948] [window cleaner fell 16 feet from ladder while scraping paint off windows-judgment for plaintiff as statute does not permit the worker's contributory negligence to be asserted as a defense] ). The exception is Gordon v. Eastern Ry. Supply, (82 N.Y.2d 555 [1993] ), which involved the cleaning of a railroad car.
Here, plaintiff was part of a team of four workers, hired by United and led by Mr. Falkowitz, his employer, called in an emergency to remove snow and water from the attic of the roof of a non-residential building which was leaking into an auditorium where a wedding was scheduled to take place within two or three hours. In view of the emergency nature of the cleaning plaintiff and his coworkers were hired to perform, the team of workers with whom plaintiff was assigned to work, the non-residential character of the building, and the task itself-a one-time removal of snow and ice requiring special water extraction equipment-the court finds that plaintiff was engaging in “cleaning” of a non-routine, non-domestic nature at the time of his accident, as opposed to routine maintenance ( see Swiderska, 10 NY3d 792;Broggy, 10 NY3d 675; Parraguirre v. 27th St. Holding, LLC, 71 AD3d 594 [1st Dept 2010] [In removing the six foot long filters from an elevated structure and transporting them to ground level where they were to be cleaned, plaintiff was “cleaning” under the statute which encompassed an elevation-related risk]; cf. Prats, 100 N.Y.2d at 882 [plaintiff mechanic who fell from ladder while readying air handling units for inspection was covered under Labor Law § 240(1) where plaintiff was hired to perform work that involved alteration of a building, had done heavier alteration work on other days at the same job site on the same project, and was a member of a team that undertook an enumerated activity under a construction contract]; Fox, 83 AD3d 889, 890 [at time of accident, plaintiff, a mechanic performing general electrical work, was engaged in a “repair” as opposed to routine maintenance where he and a team of seven or eight workers, led by their foreman, were in the process of replacing bulbs and ballast/transformers in 78 overhead light fixtures located 12 feet above floor in retail department store]; Juchniewicz v. Merex Food Corp., 46 AD3d 623, 624 [2d Dept 2007] [where injured plaintiff and another refrigeration technician were sent to defendant's refrigerated warehouse in response to an emergency call regarding a refrigeration system malfunction that ultimately took 29 1/2 hours to repair, and work involved rewiring, installing a “tattletale relay,” and replacing a standard thermostat with a digital electronic thermostat, plaintiff was engaged in “repair” at time of accident for the purposes of Labor Law § 240(1) ]; Fitzpatrick v. State of New York, 25 AD3d 755, 757 [2d Dept 2006] [plaintiff who fell from ladder while replacing a photo cell protected under statute because replacement of cell was part of his larger assignment of restoring lighting to the parking lot]; compare Dahar, 18 NY3d 521;Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002 [“changing a lightbulb (on a free-standing illuminated sign at a gas station) is not erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,' “ because it “is not broken, and does not need repair. Rather it needs maintenance of a sort different from painting, cleaning or pointing,' the only types of maintenance provided for in the statute.”]; Soto v. J. Crew Inc., 95 AD3d 721, 721 [1st Dept 2012] [employee of a commercial cleaning company, which had contracted with retail clothing store to provide general daily maintenance, was engaged in routine maintenance when he fell from ladder while dusting the top of a shelf]; Azad v. 270 5th Realty Corp, 46 AD3d 728, 729–730 [2d Dept 2007], lv denied10 NY3d 706 [2008] [plaintiff who fell from ladder after plugging hole in gutter pipe where animal had burrowed into apartment building was performing “routine maintenance” because task did not involve major structural work, attachment of metal sheets over holes was component-type replacement, and plaintiff not retained to repair the gutter pipe because it was inoperable]; Anderson v. Olympia & York Tower B Co., 14 AD3d 520, 521 [2d Dept 2005], lv denied 5 NY3d 715 [2005] [plaintiff air-conditioning technician who was injured when attempting to climb on top of unit to replace worn-out bearings was performing replacement of worn-out parts in a nonconstruction and nonrenovation context, which did not constitute “erection, demolition, repairing, altering, painting, cleaning or pointing of a building” within the meaning of Labor Law § 240(1) ]; Pound v. A.V.R. Realty Corp., 271 A.D.2d 424 [2d Dept 2000] [Labor Law § 240(1) does not apply to the performance of routine maintenance on an air-conditioning cooling tower ... or routine cleaning of water in a cooling tower]; Selak v. Clover Mgt., Inc., 83 AD3d 1585 [4th Dept 2011] [plaintiff, who was ascending the ladder in order to replace the filters in the HVAC unit, was engaged in routine maintenance at the time of his injury] ).
Defendants argue that Broggy is not applicable to the facts of this case because “[w]indow washing is the single cleaning activity that the Court of Appeals has held will satisfy the statute .” In support of this argument, defendants assert that in Dahar, the Court of Appeals specifically held that the term “cleaning” is limited to the cleaning of windows of a building. It is true, as set forth above, that the Court of Appeals commented in Dahar that it seemed that all the cases it had decided involving “cleaning,” with one exception, involved the cleaning of windows of a building (Dahar, 18 NY3d at 525). However, this “statement was made in the context of rejecting a plaintiff's request to extend the application of § 240 to reach a factory employee engaged in cleaning a manufactured product” ( Robbins v. Rye Real Estate Assocs., LLC, 2012 U.S. Dist. Lexis 147529, *7 [SD N.Y. Oct. 11, 2012] ). Moreover, Dahar did not “preclude the application of its reasoning in Broggy to cases outside the context of commercial window cleaning” ( id.).
Defendants also argue that the Appellate Division, Second Department, has already held in Garcia (16 AD3d 547) and Paciente (276 A.D.2d 761) that snow removal is not a covered activity under the statute. As an initial matter, these cases were decided before Broggy and Swiderska. In any event, in both cases, the Appellate Division did not hold that snow and ice removal does not constitute “cleaning” under Labor Law § 240(1). Rather, the Appellate Division held that the plaintiff in each of those cases was engaged in routine maintenance in a nonconstruction, nonrenovation context, and thus were not afforded the protection under the statute ( see Rodriguez v. Faber, 2009 N.Y. Slip Op 31175[U], *12 [Sup Ct, Nassau County, May 11, 2009] ). Here, however, at the time of the accident, the court has found that plaintiff, three coworkers, and his employer were engaged in an emergency job to remove water and snow from the roof of the building which was leaking into the building's auditorium where a wedding was scheduled that evening. Under the circumstances, plaintiff was performing the type of activity which constituted “cleaning” under the statute.
Despite the foregoing, a material question of fact exists as to whether defendants violated the statute or whether plaintiff's own actions were the sole proximate cause of his accident. In this regard, a “collapse of a permanent floor may give rise to liability under Labor Law § 240(1) where circumstances are such that there is a foreseeable need for safety devices' “ (Martins v. Board of Educ. of City of New York, 82 AD3d 1062, 1063 [2011], quoting Balladares v. Southgate Owners Corp., 40 AD3d 667, 66 [2007] ). Stated otherwise, “[t]here must be a foreseeable risk of injury from an elevation-related hazard to impose liability under the statute, as “defendants are liable for all normal and foreseeable consequences of their acts' “ (Shipkoski v. Watch Case Factory Assocs., 292 A.D.2d 587 [2002], quoting Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562 [1993] ). In this regard, the question is not whether a permanent structure, such as a floor, functioned as a safety device. Rather, the inquiry must be whether the worker was exposed to an elevation-related risk requiring a safety device (Jones v. 414 Equities LLC, 57 AD3d 65, 78–79 [1st Dept 2008]; quoting Broggy, 8 NY3d at 681 [“The crucial consideration under section 240(1) is whether a particular task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against”] ). “Thus, to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged” (Shipkoski, 292 A.D.2d 587, 588–589;see also Taylor v. V.A.W. of America, Inc., 276 A.D.2d 621, 621–622 [2000];Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1, 10–13 [1st Dept 2011]; Jones, 57 AD3d at 79–80).
Here, the evidence establishes that plaintiff was engaged in a protected activity at the time of his accident (i.e., cleaning), and that defendants failed to provide him any adequate safety devices. In addition, despite defendants' contention that there is insufficient evidence in the record as to whether plaintiff stepped on the “non-supportive attic ceiling or the sturdy walkway,” the record reveals that plaintiff was exposed to an elevation-related risk.As an initial matter, “ “[a] plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable” ' (Shipkoski, 292 A.D.2d at 588, quoting Gordon, 82 N.Y.2d at 562). Here, although plaintiff testified that did not know precisely how he fell after stepping into the attic (“ “[w]hen I was walking I fell and I don't know how did [sic] it happen.”), he nevertheless explained that he walked straight into the attic without stepping to the side, that he did not notice any difference in the walking surface or its height, stating that it was flat, and that he fell. In any event, Mr. Rottenstein testified without contradiction that plaintiff walked into the attic via the rear entrance, heard some yell, “he fell,” and then saw that plaintiff had fallen through the part of the attic which was covered by a dropped ceiling.Thus, the record is clear that plaintiff's accident was caused by the effects of gravity, namely his 30–foot fall through the dropped ceiling of the attic to the first floor of the building. Further, Mr. Rottenstein's testimony establishes, prima facie, that there was a foreseeable need for safety devices. In this regard, he had told plaintiff and the other workers that they could not walk off the walkway because he knew the surface on either side of the walkway was not sturdy enough to stand on, was not safe, and that walking off the walkway presented a falling hazzard. He also testified that there was only one railing in the attic, and that the rear entrance of the attic did not open directly over the beginning of the walkway, making the front entrance the “easy way to go.”
Despite the foregoing, there is a question of fact as to whether plaintiff understood Mr. Rottenstein's instructions to remain on the walkway and to enter the attic from the front entrance and whether his failure to follow Mr. Rottenstein's instructions was the sole proximate cause of his accident. First, plaintiff's own testimony and Mr. Falkowitz's affidavit raises a question of fact with respect to this issue. In this regard, plaintiff testified that before entering the attic, no one gave him any instructions to stay on the walkway or told him “where to walk or where not to walk.” On the other hand, although plaintiff did not know the language Mr. Rottenstein spoke, he testified that Mr. Rottenstein told him where to go when he got on the roof,” and Mr. Falkowitz affirms in his affidavit that [Mr. Rottenstein] took plaintiff to the back part of the attic so that he “could enter the attic through the rear entrance and start working,” suggesting that plaintiff followed Mr. Rottenstein's instructions to enter the attic from the rear.
In contrast, Mr. Rottenstein testified that when he explained to plaintiff and his coworkers that they could only walk on the walkway when inside the attic, he believed they understood him. Although Mr. Rottenstein testified that only some of the workers spoke English, he thought plaintiff understood him, stating, “It looks to me that they did understood, but I know they don't understand the best English so I was talking to them [in] English and hand language.” Mr. Rottenstein also testified that he explained with hand language and by illustration to plaintiff and his coworker that they were not to enter the attic from the rear, which Mr. Rottenstein said plaintiff and his coworker understood. Finally, Mr. Falkowitz also instructed plaintiff and his coworkers in English, and some Spanish words, to walk only on the steel walkway when inside the attic. Based upon the foregoing, a material question of fact exists as to whether plaintiff understood Mr. Rottenstein's instructions and whether his failure to follow them was the sole proximate cause of his accident (Serrano v. Popovic, 91 AD3d 626, 627–628 [2012] [where decedent was instructed to work only on the garage roof, and was not instructed to do any work on main roof where there was no safety equipment, decedent's decision to climb onto the roof of the main house was the sole proximate cause of his injuries]; Ponce–Francisco v. Plainview–Old Bethpage Cent. School Dist., 83 AD3d 683, 684–685 [2001] [where plaintiff was injured when he fell through a skylight located in a higher area of the roof that was not part of the subject work project, triable issues of fact existed as to whether the defendant violated the statute or whether plaintiff's own actions were the sole proximate cause of his accident]; cf. Tomlins v. DiLuna, 84 AD3d 1064, 1065 [2011] [evidence raised triable issues of fact as to whether the scaffolding was an adequate safety device that was readily available for the plaintiff's work and whether his decision not to use it was the sole proximate cause of his accident]; Cortez v. Northeast Realty Holdings, LLC, 78 AD3d 754, 756 [2010] [triable issues of fact as to whether the conduct of the plaintiff's decedent in operating a riding lawnmower on a slope of a hill was the sole proximate cause of his accident]; compare Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616, 619 [2008] [no question of fact as to whether plaintiff was the sole proximate cause of the accident where there was no evidence that the failure to secure the ladder or heed instructions to stop working contributed to his fall]; Pichardo v. Aurora Contrs., Inc., 29 AD3d 879, 881 [2006] [no question of fact as to whether plaintiff's conduct was the sole proximate cause of accident where the manner in which he performed his work was consistent with his supervisor's instructions and the manner in which he had previously performed the same activities]; Miano v. Skyline New Homes Corp., 37 AD3d 563, 565, 566 [2007] [plaintiff's use of wooden forms to access to basement failed to establish that his conduct was the sole proximate cause of his accident where he had been specifically directed to work in basement despite the fact that access to basement was normally through the area where the wooden forms were placed]; Parraguirre, 71 AD3d at 595 [no issue of fact as to whether plaintiff disregarded specific instructions to use the stairs to transport the steel filters from the building rather than throw them from the plant's rooftop because defendant's president never stated that he told plaintiff not to use the roof in performing the filter removal] ).
Plaintiff's contentions that Mr. Rottenstein was unable to communicate verbally with him and that Mr. Rottenstein did not know how to say “walkway” in Spanish are irrelevant in light of the fact that Mr. Rottenstein testified that he believed plaintiff understood his instructions. Further, as discussed above, plaintiff's argument that there is no evidence that plaintiff understood Mr. Rottenstein's instructions is belied by Mr. Rottenstein's testimony. In addition, while Mr. Rottenstein may not have understood some of what plaintiff told to his coworkers, Mr. Rottenstein testified that the workers were “talking between themselves ... that you [sic] only allowed to walk on this walkway.”
Lastly, plaintiff argues that defendants cannot take advantage of the recalcitrant worker defense if no safety devices were provided. However, “[e]ven when a worker is not recalcitrant' ... there can be no liability under section 240(1) when there is no violation and the worker's actions ... are the sole proximate cause' of the accident” (Blake, 1 NY3d at 290). Based upon the foregoing, plaintiff's motion for partial summary judgment on his Labor Law § 240(1) cause of action is denied, and that branch of defendants' motion to dismiss this cause of action is also denied.
Labor Law 241(6)Defendants move for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action. In support of this branch of their motion, they argue that this claim must be dismissed because only injuries sustained in the “context of construction, demolition or excavation” are actionable under the statute. According to defendants, the statute was not meant protect workers against injuries occurring in the context of routine maintenance, i.e. snow removal. Assuming plaintiff was engaged in a covered activity under the statute, defendants argue that the regulations cited by plaintiff in support of this claim are either too general or are inapplicable to the facts of this case.
In opposition, plaintiff argues that the work he was performing at the time of this accident falls within the specifically enumerated activities of “alteration,” “repair,” and “maintenance” under the definition of “construction work,” which governs Labor Law § 241(6) (12 NYCRR 23–1.4[b][13] ), that defendants have only argued that he was engaged in routine maintenance without articulating why the regulations upon which he relies are inapplicable, and that in any event, his bill of particulars contains regulations which are sufficiently specific and applicable to that facts of this case.
“Labor Law § 241(6) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Annicaro v. Corporate Suites, Inc., 98 AD3d 542, 544 [2012] ). “To prevail on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of a specific and concrete provision of the Industrial Code, and that such violation was a proximate cause of his or her injuries” ( id ).
Labor Law § 241(6) provides that:
“All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”
“[T]he scope of scope of Labor Law § 241(6) is governed by 12 NYCRR 23–1.4(b)(13)” (Martinez v. City of New York, 73 AD3d 993, 997 [2010], quoting Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595 [1995] ). “Construction work” is defined as:
“All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose (emphasis added)” (12 NYCRR 23–1.4[b][13] ).
Here, although plaintiff was engaged in “cleaning” under Labor Law § 240(1), his work is not a covered activity under Labor Law § 241(6), as plaintiff was not involved “construction work” as defined by the Industrial Code (23–1.4[b][13] ). First, the reference to “cleaning” in the regulation refers only to “cleaning of the exterior surfaces including windows of any building or other structure under construction,” a circumstance not present here. In this regard, in an analogous situation, courts have held that routine window washing is not covered under Labor Law § 241(6) (Retamal v. Miriam Osborne Mem'l Home Ass'n, 256 A.D.2d 506 [2d Dept 1998]; Wowk v. Broadway 280 Park Fee, LLC, 94 AD3d 669 [1st Dept 2012]; Probst v. 11 W. 42 Realty Investors, L.L.C., 2012 N.Y. Slip Op 30476[U] [Sup Ct, Queens County [2012] [commercial window washing does not constitute “construction” even as the term is defined in the Industrial Code, which only includes cleaning of ... windows of any building or other structure under construction ...'] ). Moreover, contrary to plaintiff's claim, he was not engaged in “alteration,” “repair” and “maintenance” since he was called in response to an emergency to remove snow and ice from a leaking roof (Martinez, 73 AD3d at 997 [act of closing a gas valve before alterations could be made to flare stations does not fall within the enumerated categories of “construction work”] ). Further, there is no evidence that plaintiff altered or repaired the attic. In this regard, Mr. Rottenstein testified that any repairs or alterations to the doors on the attic were made after and in response to plaintiff's accident. Morever, the job cannot be characterized as maintenance since it was performed due to an emergency situation which had never occurred before.
Finally, although “construction work” is defined expansively (Martinez, 73 AD3d at 997),Labor Law § 241(6) is limited to workers involved in construction, excavation or demolition (Esposito v. N.Y. City Indus. Dev. Agency, 1 NY3d 526, 528 [2003];Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 102 [2002];Sotomayer v. Metropolitan Transp. Auth., 92 AD3d 862, 864 [2012] ).
As already alluded to, plaintiff was not engaged in “construction, excavation or demolition work at the time of his accident (Esposito, 1 NY3d at 528;Gonzalez v. Woodbourne Arboretum, Inc., 2012 N.Y. Slip Op 7628 [2d Dept 2002] [plaintiff's decedent covered under Labor Law § 240(1) where he assisted in replacing a worn-out component in a large operable piece of machinery but Labor Law § 241(6) inapplicable since accident did not occur in connection with construction, demolition or excavation work]; Lioce v. Theatre Row Studios, 7 AD3d 493, 493 [2004] [plaintiff hired to design a lighting plan and install lights for a theatrical program who fell from ladder not engaged in “construction work” nor demolition or excavation work]; Lavigne v. Glens Falls Cement Co., 92 AD3d 1182 [3d Dept 2012], lv denied 19 NY3d [2012] [where plaintiff's work—pulling electrical cable which snapped back at him-was unrelated to any broader renovation or construction project, and limited to removing and replacing damaged cable, Labor Law § 241(6) claim should have been dismissed]; Alexander v. Hart, 64 AD3d 940 [3rd Dept [2009] [service technician who fell while working on a HVAC unit during service call, as opposed to regularly scheduled maintenance call, engaged in repair under Labor Law § 240(1), but not covered under Labor Law § 241(6) because no construction, excavation or demolition work was being performed] ).
Accordingly, that branch of defendants' motion to dismiss plaintiff's Labor Law § 241(6) cause of action is granted.
Labor Law § 200Defendants move to dismiss plaintiff's Labor Law § 200 and common-law negligence claims. In support of their motion, defendants argue that United did not supervise plaintiff's work. In this regard, defendants assert that they may not be held liable under this cause of action merely because Mr. Rottenstein showed plaintiff where the work was to be performed.
In opposition, plaintiff argues that there are material issues of fact as to whether defendants had actual notice of a dangerous or defective condition and whether Mr. Rottenstein supervised plaintiff's work because Mr. Rottenstein was aware that the dropped ceiling was unsafe and took an active role in directing plaintiff and his coworkers.
Labor Law § 200 is a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998];Martinez, 73 AD3d at 997). “Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” ( id., citing Ortega v. Puccia, 57 AD3d 54, 61 [2008] ). Where a plaintiff's injuries arise from the manner in which the work is being performed, Labor Law 200 liability may be imposed on those owners or contractors who supervise and control the work ( id.). Where a plaintiff's injuries arise from an allegedly dangerous condition on the property, a property owner will be held liable under the statute where the owner either created or had actual or construction notice of the dangerous condition ( id.; Martinez, 73 AD3d at 997).
Here, defendants have failed to make a prima facie showing entitling them to summary judgment. In this regard, material questions of fact exist as to whether plaintiff was injured as a result of a dangerous condition and with respect to the manner in which he was supervised. As to the former category, as noted in detail above, Mr. Rottenstein testified that he was aware that the dropped ceiling was unsafe and presented a hazardous condition. However, he also testified that he instructed plaintiff and his coworkers to remain on the walkway, and instructed plaintiff to enter the attic via the front entrance. Since plaintiff testified that he did not receive any instructions with respect to the walkway, material questions of fact exist as to whether Mr. Rottenstein adequately alerted plaintiff about the dropped ceiling and whether Mr. Rottenstein sufficiently communicated that plaintiff should enter the attic via the front entrance.
Further, questions of fact exist as to whether Mr. Rottenstein supervised plaintiff's work and whether he did so adequately so that plaintiff could understand him. In this regard, Mr. Rottenstein testified that he warned the workers to remain on the walkway, that he and Mr. Falkowitz divided into two groups of two workers each, that he directed where plaintiff and plaintiff's coworker were to position themselves, that he assigned each worker a particular task, and told plaintiff, using hand gestures, to enter the attic via the front entrance. On the other hand, although plaintiff testified that Mr. Rottenstein told plaintiff to enter the attic despite the fact that there was no light, and that his own boss told him to go into the attic with the vacuum, plaintiff also testified that he did not receive instructions from anyone regarding his work, and that his boss did not give him instructions on what to do. Thus, a question of fact exists as to whether Mr. Rottenstein supervised plaintiff and whether he was negligent in doing so. Based upon the foregoing, this branch of defendants' motion to dismiss plaintiff's Labor Law § 200 and common-law negligence claims is denied.
In sum, plaintiff's motion for partial summary judgment is denied, that branch of defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action is granted, and the remainder of defendants' motion is denied.
This constitutes the decision and order of this court.