Campisiv. Epos Contracting Corp. , 747 N.Y.S.2d 218 ( 2002 )

OPINION OF THE COURT

Ellerin, J.

This appeal presents a question of the scope of the class of persons protected by Labor Law § 240 (1), which provides:

“All contractors and owners and their agents * * * 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.”

Plaintiff was a superintendent of construction for the City of New York who was injured while at work coordinating and monitoring the performance and progress of the contractors working pursuant to contract with the City to convert a City-owned brownstone into a six-family house. At the time of the injury, he had returned to the site from lunch and noticed the absence of noise generated by tools. He went inside to find out why it was so quiet and how far the work for that day had progressed. After passing the threshold at the building entrance, he stepped into a space between two joists in flooring installed by defendant Innovated Concepts Contracting Corp., fell through the gap as far as his elbows, and ended up dangling between the first floor and the basement.

The motion court denied plaintiffs’ motion for partial summary judgment on the issue of liability on their Labor Law § 240 (1) cause of action on the ground that plaintiff was not “performing work in any of the [ ] activities” enumerated in the statute, i.e., “erection, demolition, repairing, altering, painting, cleaning or pointing,” and therefore could not show, as required for entitlement to the statute’s protection, that he was “performing work necessary and incidental to the erection or repair of a building or structure.” In support of its holding, the court cited Shields v St. Marks Hous. Assoc. (230 AD2d 903, lv denied 91 NY2d 806), a case in which the plaintiff was employed by the general contractor on a renovation project as a night watchman/security guard, i.e., a job wholly unrelated to the work of the renovation project.

In cases more closely analogous to this one, employees hired to inspect construction work have been held to be within the class of persons protected by section 240 (1). Partial summary judgment on the issue of liability has been awarded to a civil engineer in charge of bridge construction who fell while inspecting the job site (Reisch v Amadori Constr. Co., 273 AD2d 855); an architect who fell while inspecting the construction of a manufacturing plant (Aubrecht v Acme Elec. Corp., 262 AD2d 994); an independent consultant hired by the general contractor who fell while inspecting the construction (Nowak v Kiefer, 256 AD2d 1129, lv denied in part and dismissed in part 93 NY2d 887, rearg dismissed 93 NY2d 1000); and a supervisor and steel inspector employed by one of the subcontractors on the job who fell while inspecting the work of an employee of another subcontractor (Iannelli v Olympia & York Battery Park Co., 190 AD2d 775). The lannelli Court explained that section 240 (1) was applicable because “[i]t is evident from the facts of this case that the plaintiff was exposed to the risks inherent in an elevated work site * * * and that his work involved the erection of a building” (at 776 [citations omitted]).

Expressed more pointedly, the statute may be applicable “despite the fact that the particular job being performed at the moment plaintiff was injured did not in and of itself constitute construction” (Covey v Iroquois Gas Transmission Sys., 218 AD2d 197, 199, affd 89 NY2d 952; see also O’Connor v Lincoln Metrocenter Partners, 266 AD2d 60, 61 [employee who fell en route to 24th floor work site where he stripped forms from recently poured concrete was covered]; Reinhart v Long Is. Light. Co., 91 AD2d 571, 571, appeal dismissed 58 NY2d 1113 [plumbers who. fell while discussing payroll and timesheet problems “were employed, and they were not interlopers, and the scaffold was defective, and accordingly, summary judgment should have been granted as to liability”]). In affirming Covey, the Court of Appeals held that the plaintiff, who was injured while doing maintenance work to keep the heavy equipment being used in a pipeline project operating, “was engaged in an activity protected under Labor Law § 240 (1), inasmuch as the work performed by plaintiff was part of the construction of the pipeline” (89 NY2d at 953-954). Unlike the plaintiff in Shields (supra), who was a night watchman, but, like the plaintiffs in Reisch, Aubrecht, Nowak, and lannelli (supra), who inspected construction work in progress, plaintiff here performed work that was “part of’ the construction project. He was the person with whom the various trades checked in at the beginning of every day on the site. He monitored the general contractors’ work to make sure they were doing the job according to the blueprint specifications. As described by defendant Innovated Concepts, plaintiff’s job was “to ensure the City got what it paid for and that cheap or inferior substitutes or materials did not slip through.” To check on the work that was being done, he visited all areas of the building, including those in which elevation posed a risk, such as the plywood floor over the basement. While his part in the renovation of the building did not require him to use masons’, carpenters’, electricians’ or plumbers’ tools, plaintiff was as much employed “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” within the meaning of the statute as any of the employees whose work he inspected. By virtue of their exposure to the risks inherent in an elevated work site and their involvement in the erection, etc., of a building or structure (see lannelli, supra), inspectors of construction projects are “workers on the job” and, as such, are within the class of persons protected by section 240 (1) (Kirkpatrick v Diversified Sports, 216 AD2d 891, 892, citing Haimes v New York Tel. Co., 46 NY2d 132).

We cannot agree with the dissent that Martinez v City of New York (93 NY2d 322) is controlling here. The plaintiff in Martinez was an environmental inspector whose job was to identify asbestos problem areas in preparation for removal of the asbestos from New York City public schools. The Court held that the plaintiffs job did not entitle him to protection under section 240 (1) because the work he was doing was to terminate before the subsequent asbestos removal work actually commenced and “the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” (id. at 326 [emphasis added]). The Court pointed out that at the time of the plaintiffs accident none of the activities enumerated in the statute was under way and that, moreover, any future repair work would be conducted not by the plaintiff’s employer but by “some other entity” (id.). Thus, the plaintiff was “not a person ‘employed’ to carry out the repairs as that term is used” in the statute (id., quoting Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108, 1109).

A reading of Gibson establishes that the relevant inquiry here is not whether the plaintiff picked up a tool to effect a repair, but whether he had been hired to take any part in the repair work. The plaintiff in Gibson was a design engineer who was injured while inspecting the damage to the roof of the defendant’s building in preparation for submitting an estimate on the repair job. The Court held that he was not within the class of workers protected by section 240 (1) because at the time of the accident his firm had not been hired, i.e., the firm was not employed, to repair the roof. Thus, the Martinez Court’s quotation from Gibson — that Walfredo Martinez was “not a person ‘employed’ to carry out the repairs as that term is used” — refers to the fact that Martinez’s employer had not been hired, i.e., his employer was not employed, to remove asbestos.

Neither Martinez nor Gibson addresses the question of whether the particular job of inspecting ongoing construction work disqualifies a plaintiff for protection under the statute. Indeed, while the Martinez Court affirmed the denial of the plaintiff’s motion for summary judgment, it specifically rejected the argument that the plaintiffs inspection work was not integral to the asbestos removal work (93 NY2d at 325, 326). The Court focused on the time frame in which the plaintiff performed his inspection, i.e., before the asbestos removal work commenced, rather than on the plaintiff’s job description.

Since plaintiff was employed in an activity covered by Labor Law § 240 (1) and it cannot be controverted that his fall through temporary flooring was an elevation-related incident (see O’Connor v Lincoln Metrocenter Partners, 266 AD2d 60; Robertti v Chang, 227 AD2d 542, lv dismissed 88 NY2d 1064), he has established the necessary predicate for liability under that statute.

Defendants’ subcontract established that defendant Epos contracted with the City, the building owner, to perform the construction and subcontracted the entire project to defendant Innovated. The owner of Innovated testified that putting down the plywood floor was one of Innovated’s responsibilities. Both defendants therefore are responsible for violations of section 240 (1) (see Kyle v City of New York, 268 AD2d 192, lv denied 97 NY2d 608).

Accordingly, the order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered September 21, 2000, which, inter alia, denied plaintiffs’ motion for partial summary judgment on the issue of liability on their Labor Law § 240 (1) claim and granted defendant Epos Contracting Corporation’s cross motion for summary judgment dismissing that claim as against all parties, should be reversed, on the law, without costs, plaintiffs’ motion granted, defendant Epos’s cross motion denied and the matter remanded for further proceedings.