Opinion
13119/01.
Decided January 20, 2005.
CELLINO BARNES, P.C., Thomas J. Rzepka, Esq. of Counsel, Rochester, New York, Attorneys for Plaintiff.
BURKE, ALBRIGHT, HARTER REDDY, LLP, Robert J. Burke, Esq. of Counsel, Rochester, New York, Attorneys for Defendant John Kalenak.
SUGARMAN LAW FIRM, LLP Stephen G. Pesarchick, Esq. of Counsel, Syracuse, New York, Attorneys for Defendant Morris Massry.
On July 21, 2000, plaintiff was hanging wallpaper as an independent contractor for defendant Kalenak Painting Paperhanging, Inc. On that date, while working in the bathroom at an apartment at the Imperial South Apartments, owned by defendant Massry, plaintiff fell from her step ladder injuring herself. She subsequently commenced this action against the owner and contractor alleging causes of action for violations of Labor Law §§ 240(1), 241(6), 200 and common law negligence. Defendants now move for summary judgment dismissing the complaint. Plaintiff cross-moves for partial summary judgment regarding liability on her Labor Law § 240(1) cause of action.
Plaintiff testified at her deposition that, while standing on the third step of her four foot step ladder, she reached to tear off an old piece of wallpaper when she fell off the ladder. She stated that the ladder also fell over, landing on top of her. Plaintiff further testified that there was all kinds of junk laying around this apartment in the form of little pieces of drywall, paper, dirt and "stuff". Plaintiff noticed that the carpeting had been removed throughout the apartment, there were no appliances in the kitchen, the apartment was being painted and the medicine cabinet had been removed from the bathroom wall leaving a hole in the wall. She also testified there were small pieces of drywall on the bathroom floor. Jackie Roberts, the manager of the Imperial South Apartments, testified at her deposition that, according to the move out description of damage report, this apartment was having the kitchen counter replaced, kitchen floor replaced, entire apartment, including ceilings painted, dishwasher replaced, all new carpeting installed and new wallpaper hung in the bathroom. This work was being done to prepare the apartment for new tenants.
Labor Law § 240(1) imposes a nondelegable duty on owners and contractors and their agents to furnish, or cause to be furnished, suitable safety devices to give proper protection to workers engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240). Liability attaches regardless of whether the owners or contractors actually exercise supervision or control over the work. They may be held absolutely liable in damages for any breach of that duty which proximately caused injury to a worker so engaged ( see Gordon v. Eastern Ry. Supply, 82 NY2d 555, 559-560; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-501; Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513; Haimes v. New York Tel. Co., 46 NY2d 132, 136-137). As a threshold matter, an injured worker must have been engaged in one of the statute's enumerated activities in order to fall under its special protections ( see Jock v. Fien, 80 NY2d 965968 [1992]). The focus of inquiry is on the "type of work the plaintiff was performing at the time of injury" (Joblon v. Solow, 91 NY2d 457, 465). Defendants argue that the activity which plaintiff was performing, hanging wallpaper, is not a protected activity under Labor Law § 240(1) and plaintiff's claim under that statute should therefore be dismissed.
The facts of this case are very similar to those in La Fontaine v. Albany Management Inc., 257 AD2d 319 (3rd Dept 1999). In LaFontaine, plaintiff also fell from a stepladder while engaged in removing and replacing wallpaper in a vacant apartment. The Third Department held that since "wallpapering, by itself, was neither an activity specifically listed in Labor Law § 240(1) nor incidental and necessary to any of the enumerated activities, we conclude that it was not covered by this statute" ( La Fontaine v. Albany Management Inc., 257 AD2d 319, 320). In Lafontaine, the Third Department found that wallpapering by itself was not construction, altering, repairing, painting or cleaning as contemplated by Labor law § 240(1). However, the Third Department did in a footnote specifically "leave for another day the issue of whether wallpapering incidental to activities listed in Labor Law § 240 (1) is covered, and under what circumstances" ( La Fontaine at 324).
Plaintiff concedes that the isolated activity of hanging wallpaper has never been held to be a covered activity under Labor Law § 240(1). She argues however, that where it is done as part of an overall construction, renovation or alteration project it comes within the protection of Labor Law § 240(1). This expansive view of what may constitute a covered activity is not supported by the case law and is rejected by this court.
If the type of work that the injured plaintiff was engaged in at the time of injury was not one of the specific enumerated activities, then, in order to be a covered activity, the worker must be "engaged in work sufficiently necessary and incidental to one of the enumerated activities" ( La Fontaine v. Albany Management Inc., 257 AD2d 319, 320-321). The type of connection needed between the enumerated activity, i.e., erection, demolition, repairing, altering, painting, cleaning or pointing, and wallpapering in order for the wallpapering to be considered a protected activity was demonstrated in Loreto v. 376 St. Johns Condominium, Inc., 196 Misc 2d 791 (Sup Ct Kings Co 2003). This case is the only other reported decision following LaFontaine to address whether the activity of wallpapering is a covered activity under Labor law § 240(1). In Loreto, Justice Ruchelsman found that the wallpapering done by that plaintiff was "the continuing and indeed the finishing stages of wall repair and painting, clearly covered activities within the Labor Law statute" ( Loreto v. 376 St. Johns Condominium, Inc., 196 Misc 2d at 795). Justice Ruchelsman continued "Moreover, without the wallpapering, the overall requirements of the job would remain incomplete and hence inadequate. Thus, the wallpapering was necessary and integral to complete the stated job and consequently plaintiff was engaged in protected activity under the Labor Law statute" ( Id. at 795).
A finding that the wallpapering work must be "necessary and integral" to the covered activity is further supported by the cases cited by plaintiff ( see Gale v. Running Brook Builders, Inc., 261 AD2d 436, 437 [2nd Dept 1999] [Hydroseeding was an integral and necessary part of the subject 33 home construction project and hence a covered activity]; Mosher v. St. Joseph's Villa, 184 AD2d 1000, 1002 [4th Dept 1992] [Removal of a tree was a covered activity as it constituted site preparation, which was incidental and necessary to the erection of the building]; Van Buskirk v. State of New York, 303 AD2d 970, 971 [4th Dept 2003] [Inspection work was a protected activity because it was "necessary and incidental to the construction of the building"]; Scally v. Regional Indus. Partnership, 9 AD3d 865, 867 [4th Dept 2004] [Removal of commercial air conditioning units from the roof of a building is an activity protected by the statute, i.e., the "altering . . . of a building". Therefore, the work in which plaintiff was engaged at the time of the accident, removing debris from the top of the air conditioning units after they were loaded onto a flatbed truck, was "ongoing and contemporaneous with" that protected activity and thus also protected.]). None of these decisions provide, as urged by plaintiff, that plaintiff's work simply be "part of the overall project" in order for itself to also be a protected activity under Labor Law § 240(1).
First, this record does not support plaintiff's argument that the apartment in question was being constructed, repaired or altered. There is nothing in the record to indicate that the reason the kitchen floor, kitchen counters, carpeting, or wallpaper was being replaced was because any of them were broken necessitating repair. Additionally there is no proof in this record that the new kitchen counter or flooring was going to be any different than the original so as to constitute an alteration which must be a "significant physical change to the configuration or composition of the building or structure" ( Joblon v. Solow, 91 NY2d 457, 465). However, even if one could consider the other work undertaken in the apartment as an alteration of it, a certain dependency between plaintiff's work, the wallpapering, and the overall project must be shown in order for plaintiff's work to still be considered a protected activity.
Unlike the work being performed in the previously mentioned cases cited by plaintiff, the kitchen work, carpet work, painting and bathroom wallpapering were not related task-wise. They had nothing to do with one another other than the fact they were being performed in the same vacant apartment. If the wallpapering was necessary because of a change in the configuration of the back splash to the kitchen counter, or placement of the dishwasher, or, if the bathroom vanity or medicine cabinet were going to be replaced and were of a different size requiring new wallpaper, then the wallpapering undertaken by plaintiff would be both necessary and integral to the overall renovation of the apartment and hence a covered activity. However, these are not the facts of this case. The bathroom medicine cabinet and vanity were not being replaced. There is no evidence that any previously unpapered wall area was to be exposed in the bathroom requiring wallpaper.
Clearly, plaintiff's work was not incidental and necessary to the other work being undertaken in the apartment. Simply being part of an overall project is insufficient. As in LaFontaine, "the paperhanging activity in which plaintiff was engaged is the type of cosmetic maintenance or decorative modification that is routinely provided to a vacant apartment between tenancies which does not effect a 'significant physical change' to the composition or configuration of the apartment and does not qualify as altering under this statute" ( La Fontaine v. Albany Management Inc., 257 AD2d at 322 quoting Joblon v. Solow, 91 NY2d at 465). Contrary to the work in Loreto v. 376 St. Johns Condominium, Inc., 196 Misc 2d 791, where the wall behind the wallpaper was being repaired, plaintiff's task in replacing the wallpaper at the time of her injury is an activity that, "constituted 'routine maintenance' rather than 'repair' or 'alteration' of a building or structure" ( Chizh v. Hillside Campus Meadows Associates, LLC, 3 NY3d 664, 665). Accordingly, plaintiff's cross-motion for summary judgment regarding liability on her Labor Law § 240(1) cause of action is denied. Defendants' motions for summary judgment dismissing the Labor Law § 240(1) cause of action is granted.
In order to sustain a cause of action under Labor Law § 241(6), plaintiff must allege and prove that defendants violated a rule or regulation of the Commissioner of Labor that sets out a specific concrete standard of conduct as opposed to general safety standards. ( see Adams v. Glass Fab, Inc., 212 AD2d 972 [4th Dept 1995]; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-504). Plaintiff claims the following regulations of the Industrial Code were violated: (1.) 12 NYCRR § 23-1.7(e)(2), which falls under the heading "Tripping and other hazards". That regulation provides: "Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed." (2.) 12 NYCRR § 23-1.21(a), which provides, "Approval required. Any metal or fiberglass ladder which is 10 feet or more in length shall be approved. Any other ladder not named or described in this Part (rule) shall not be used unless approved." (3.) 12 NYCRR § 23-1.21(e)(3), which states, "Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means."
Plaintiff's Labor Law § 241(6) cause of action is dismissed. The first cited regulation is inapplicable to the facts of this case, as plaintiff was not injured in a tripping accident ( see Farrell v. Blue Circle Cement, Inc., 2004 WL 3019474 [4th Dept 12/30/04] ; Madir v. 21-23 Maiden Lane Realty, LLC, 9 AD3d 450, 452 [2nd Dept 2004]). Section 23-1.7(e)(2) of the Industrial Code therefore cannot support her Labor Law § 241(6) cause of action. Industrial Code § 23-1.21(a) is a general safety standard as applied to stepladders and not a specific standard of conduct. It is therefore insufficient to sustain a Labor Law § 241(6) cause of action. Plaintiff has cited no authority to the contrary.
Plaintiff's final theory of liability, as regards section 241(6), allegedly arises under 12 NYCRR 23-1.21(e)(3), which, as relevant here, provides: "Stepladder footing. Standing stepladders shall be used only on firm, level footings." Through the submission of plaintiff's deposition testimony, defendants have met their initial burden of establishing that this regulation is inapplicable to the facts of this case. Plaintiff initially testified that just before her fall, the ladder upon which she was standing was not wobbly. She further stated that at the time of the accident it was fair to say that she did not know what the ladder was positioned on. Lastly, she testified that after waiting a period of time she completed hanging a piece of wallpaper using the ladder and the ladder was fine. In opposition, plaintiff points to her testimony wherein she states that approximately two weeks after the accident she discovered a small one inch by one inch piece of drywall stuck in one of the foots of her ladder. Plaintiff infers that the drywall came from the bathroom in which she fell, because she testified she never used the ladder after her fall. Plaintiff further suggests that the ladder must have been placed on top of this small piece of drywall at the time of her accident, causing the ladder to not be on a firm, level footing. Plaintiff subsequently discarded the piece of drywall. She also testified that she had used the ladder when hanging wallpaper on numerous occasions before her accident.
Such proof falls short of plaintiff's burden to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" ( Zuckerman v. City of New York, 49 NY2d 557 560). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment ( Id. at 562).
In this case, plaintiff would seek at trial to have a jury reach the inference that, at the time of her fall, her ladder was resting on a small piece of drywall causing it to be unbalanced. This inference is in turn based on the further sought inference that the piece of drywall found two weeks later stuck in the foot of her ladder came from defendant Massry's apartment bathroom. Such evidence does not rise to the level of admissible circumstantial evidence. "The rule in this State is 'that inference may be based on inference, that inference may not be based upon conjecture, nor conjecture upon inference to prove a fact or to serve as the basis for an ultimate conclusion. . . . . . . . . . . Clearly, an inference can be based upon a fact which is itself based upon circumstantial evidence . . . . . . . . . . . if the first inference is a reasonably probable one, it may be used as a basis for a succeeding inference'" ( Pollock v. Rapid Indus. Plastics Co., Inc., 113 AD2d 520, 524 [2nd Dept 1985] quoting 2 Bender, New York Evidence § 48.01, at 11-12). However, "if the probabilities are evenly balanced, no inference adverse to the defendant may be drawn; to do so would be to indulge in speculation" ( Markel v. Spencer, 5 AD2d 400, 407 [4th Dept 1958]).
Here, a jury would be engaging in speculation and conjecture in deciding that it was "more likely" or "more reasonable" that the piece of stuck drywall came from the bathroom in question rather than some other location and that plaintiff's ladder was resting on it at the time of her fall ( cf. Gayle v. City of New York, 92 NY2d 936). For the foregoing reasons, the specific standard of conduct set forth in 12 NYCRR 23-1.21(e)(3) is inapplicable to the facts of this case. Plaintiff's Labor Law § 241(6) cause of action is dismissed.
Lastly, plaintiff has also conceded that she does not have a valid Labor Law § 200 or common law negligence cause of action against these defendants. Those causes of action are therefore likewise dismissed.
In summary, defendants' motions for summary judgment are granted. Plaintiff's cross-motion for partial summary judgment is denied. Defendant Massry's attorney shall submit an order, on notice to plaintiff's and co-defendant's attorney, in conformance with this decision. The filing of the papers upon which this decision is based is dispensed with pursuant to CPLR 2220(a).