Opinion
533415
12-23-2021
Craig RUSSO, Respondent, v. VAN DALE PROPERTIES, LLC, Appellant.
Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Brendan T. Fitzpatrick of Gerber Ciano Kelly Brady LLP, Garden City, of counsel), for appellant. Dall Vechia & Kraft, PC, Kingston (John T. Dall Vechia of counsel), for respondent.
Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Brendan T. Fitzpatrick of Gerber Ciano Kelly Brady LLP, Garden City, of counsel), for appellant.
Dall Vechia & Kraft, PC, Kingston (John T. Dall Vechia of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeal from an order of the Supreme Court (Cahill, J.), entered April 30, 2021 in Ulster County, which, among other things, granted plaintiff's motion for partial summary judgment.
Plaintiff, a machine equipment operator, commenced this action premised upon Labor Law §§ 200, 240(1) and 240(6) following an incident in which he was injured when an overhead door closed on him. The accident occurred on June 5, 2019 at plaintiff's workplace, which was leased from defendant by plaintiff's employer. Earlier that day, the door was damaged by one of plaintiff's coworkers who was lifting a piece of steel with a loader. Plaintiff and his coworkers realized at the end of their shift that the door would not close because of that damage, prompting them to discuss how to get it shut so that they could secure the building and go home. One of plaintiff's coworkers made an unsuccessful attempt to close the door by cutting a supporting cable that had come unspooled. Plaintiff, who was walking outside to pull on the cable in a further effort to dislodge the door, was then injured when one of his coworkers manipulated the door with a crowbar and caused the door to suddenly fall on him.
Following joinder of issue and discovery, plaintiff moved for summary judgment as to liability on his Labor Law § 240(1) claim. Defendant cross-moved for summary judgment dismissing the complaint and argued, as is relevant here, that plaintiff was not a worker covered by Labor Law § 240(1) and that he was engaged in maintenance, not the requisite repair, of the door. Supreme Court disagreed and granted plaintiff's motion, and defendant appeals.
We affirm. "[I]n order to invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents, a ‘plaintiff must demonstrate that he [or she] was both permitted or suffered to work on a building or structure and that he [or she] was hired by someone, be it owner, contractor or their agent," to do so ( Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576–577, 561 N.Y.S.2d 892, 563 N.E.2d 263 [1990] [internal quotation marks and citations omitted]; see Labor Law §§ 2[5], [7] ; 240[1]; Stringer v. Musacchia, 11 N.Y.3d 212, 215, 869 N.Y.S.2d 362, 898 N.E.2d 545 [2008] ; Hill v. Country Club Acres, Inc., 134 A.D.3d 1267, 1267, 20 N.Y.S.3d 755 [2015] ). Notably, the fact that the defendant did not itself hire the plaintiff to perform any work is irrelevant, as "[a] property owner may be held liable for a violation of Labor Law § 240(1) that proximately caused injury to a worker even where ‘a tenant of the building contracted for the work without the owner's knowledge’ " ( Churaman v. C&B Elec., Plumbing & Heating, Inc., 142 A.D.3d 485, 486, 35 N.Y.S.3d 716 [2016], quoting Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 335, 858 N.Y.S.2d 67, 887 N.E.2d 1125 [2008] ; see Coleman v. City of New York, 91 N.Y.2d 821, 822–823, 666 N.Y.S.2d 553, 689 N.E.2d 523 [1997] ; Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 560, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993] ).
Plaintiff's work duties included helping his coworkers if needed and securing the building at the end of the day, and he was fulfilling those duties by attempting to fix the broken door enough so that it would close. Further, although defendant retained responsibility for many repairs when it leased the property, plaintiff's employer was empowered to make emergency repairs and was also responsible for those "made necessary by misuse or neglect by" either its "agents, servants, visitors or licensees." Plaintiff's employer accordingly had some obligation to repair the damage its employee had caused to the door and, indeed, later hired and paid the contractor who made permanent repairs to the door. Therefore, even accepting that questions of fact exist as to whether plaintiff and his coworkers were instructed to contact a supervisor about a problem with the overhead doors rather than attempting to address the issue on their own, "we nevertheless conclude that plaintiff was an employee working for his employer, rather than a mere volunteer, while performing that work" ( Boncore v. Temple Beth Zion, 299 A.D.2d 953, 954, 751 N.Y.S.2d 337 [2002] ; see Rast v. Wachs Rome Dev., LLC, 94 A.D.3d 1471, 1472–1473, 943 N.Y.S.2d 323 [2012] ; Calaway v. Metro Roofing & Sheet Metal Works, Inc., 284 A.D.2d 285, 285–286, 727 N.Y.S.2d 426 [2001] ; Vernum v. Zilka, 241 A.D.2d 885, 886–887, 660 N.Y.S.2d 599 [1997] ; Lawyer v. Rotterdam Ventures Inc., 204 A.D.2d 878, 879–880, 612 N.Y.S.2d 682 [1994], lv dismissed 84 N.Y.2d 864, 618 N.Y.S.2d 8, 642 N.E.2d 327 [1994] ; cf. Bolster v. Eastern Bldg. & Restoration, Inc., 96 A.D.3d 1123, 1124, 946 N.Y.S.2d 298 [2012] ; Chapman v. IBM Corp., 233 A.D.2d 585, 586–587, 649 N.Y.S.2d 228 [1996] ).
Next, "[i]t is settled that ‘repairs’ implicate Labor Law § 240(1) liability whereas ‘routine maintenance’ does not," although distinguishing between the two is "frequently a close, fact-driven issue" ( Pakenham v. Westmere Realty, LLC, 58 A.D.3d 986, 987, 871 N.Y.S.2d 456 [2009] ; see Markou v. Sano–Rubin Constr. Co., Inc., 182 A.D.3d 674, 675, 122 N.Y.S.3d 386 [2020] ). It is not close here, however, where it is undisputed that the door had been so damaged by an accident earlier that day that plaintiff and his coworkers were unable to close it in the normal fashion and had to manipulate the door in an effort to close it and secure the building. Those are "hardly the type of circumstances encountered if engaged in a ‘routine’ round of maintenance" ( Pakenham v. Westmere Realty, LLC, 58 A.D.3d at 987, 871 N.Y.S.2d 456 ), and confirm that plaintiff and his coworkers were attempting to make emergency repairs to a "door [that] would not function properly" without them ( Shapiro v. ACG Equity Assoc., 233 A.D.2d 857, 857, 649 N.Y.S.2d 279 [1996] ; see Wolfe v. Wayne–Dalton Corp., 133 A.D.3d 1281, 1282–1283, 20 N.Y.S.3d 777 [2015] ; Dean v. City of Utica, 75 A.D.3d 1130, 1131, 906 N.Y.S.2d 833 [2010] ; Riccio v. NHT Owners, LLC, 51 A.D.3d 897, 898–899, 858 N.Y.S.2d 363 [2008] ; Lofaso v. J.P. Murphy Assoc., 37 A.D.3d 769, 771, 831 N.Y.S.2d 230 [2007] ). Plaintiff was therefore engaged in an activity protected by Labor Law § 240(1) and, given the lack of dispute that a safety device should have been used to prevent the door from falling while it was being repaired and that the absence of that device was the proximate cause of his injuries, Supreme Court properly granted his motion for summary judgment as to liability on that claim (see Williams v. Town of Pittstown, 100 A.D.3d 1250, 1251–1252, 955 N.Y.S.2d 234 [2012] ; Jock v. Landmark Healthcare Facilities, LLC, 62 A.D.3d 1070, 1071–1072, 879 N.Y.S.2d 227 [2009] ).
In view of the foregoing, defendant's arguments regarding plaintiff's other causes of action are academic (see Salzer v. Benderson Dev. Co., LLC, 130 A.D.3d 1226, 1229, 13 N.Y.S.3d 634 [2015] ; Yost v. Quartararo, 64 A.D.3d 1073, 1075, 883 N.Y.S.2d 630 [2009] ).
Lynch, Clark, Aarons and Pritzker, JJ., concur.
ORDERED that the order is affirmed, with costs.