Citation Numbers: 196 Misc. 2d 791, 766 NYS2d 756
Judges: Ruchelsman
Filed Date: 7/2/2003
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
The plaintiff moves pursuant to CPLR 3212 for summary judgment on the issue of liability pursuant to Labor Law § 240 (1). The defendants oppose the motion and cross-moved for summary judgment. After reviewing the arguments of all parties this court now makes the following determination.
On November 27, 2001 the plaintiff Charles Loreto was working as a laborer for defendant 376 St. Johns Condominium, Inc. preparing the walls and applying wallpaper in the lobby and interior stairway of 376 St. Johns Place in Kings County. The plaintiff created a makeshift platform consisting of a metal crate and a piece of plywood where plaintiff rested a ladder, giving plaintiff access to greater heights near the top of the walls closest to the ceiling. The plaintiff had positioned the ladder, using the crate and plywood, on the fourteenth step between the second and third floor landings. The ladder then shifted causing plaintiff to fall approximately 20 feet. The plaintiff suffered injuries including fractures to both arms and partial permanent disability.
A lawsuit was commenced based on Labor Law violations. Plaintiff now moves for summary judgment arguing that his injuries resulted because the ladder he used was not secured and that adequate safety measures were noticeably absent. The defendant counters that summary judgment must be denied since the application of wallpaper is not one of the enumerated activities in the Labor Law statute and that, therefore, plaintiff is not entitled to the imposition of absolute liability upon defendant.
Conclusions of Law
Preliminarily, it must be pointed out that the errata sheets signed by plaintiff sufficiently provide reasons for the corrections and will be incorporated within the overall deposition of plaintiff (see, CPLR 3116 [a]; Cilio v Resjefal Corp., 295 AD2d 257 [1st Dept 2002]). Any credibility issues raised between the original deposition and the additions provided in the errata sheets should not be resolved on a motion for summary judgment, rather they should be resolved at trial (Binh v Bagland USA, 286 AD2d 613 [1st Dept 2001]).
Summary judgment may be granted where the movant establishes sufficient evidence which would compel the court to grant judgment in his or her favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment would thus be appropriate where no right of action exists foreclosing the continuation of the lawsuit.
Labor Law § 240 (1) imposes absolute liability upon owners, contractors or their agents for injuries sustained by workers engaged in certain enumerated jobs which arise where the work site is elevated and elevation devices do not provide
In LaFontaine v Albany Mgt. (257 AD2d 319 [3d Dept 1999]), the Court held that wallpaper hanging, by itself, is not a covered activity and a worker engaged in wallpapering may not utilize the strict liability determinations of the Labor Law statute. The Court specifically noted that it was reserving decision on whether wallpapering incidental to enumerated activities would be covered under the Labor Law.
In Joblon v Solow (91 NY2d 457, 465 [1998]), the Court ruled that “what type of work the plaintiff was performing at the time of injury” was the determining factor when evaluating the specific work covered under the Labor Law. Therefore, if the actual work being performed is “altering” or “demolition” or “painting” then such activity would be covered under the Labor Law.
Subsequent cases interpreting Joblon did not apply that rule rigidly, rather incorporated other incidental works within the framework of covered activities under the Labor Law. Therefore, in Mannes v Kamber Mgt. (284 AD2d 310 [2d Dept 2001]), the Court held that injuries which a worker sustained when he fell from a ladder while taking preliminary measurements of an enclosed area above a cooler for an impending job were covered under the Labor Law. While taking measurements is not, standing alone, a covered activity, nevertheless, these measurements were the preliminary stages necessary for a refrigeration project which consisted of alterations to the building including placing pipes through existing walls and the erection of an addition adjacent to the current building. The Court concluded that since plaintiff was hired to perform these alterations which are indisputably covered activities, the act of measuring the area was likewise covered under the Labor Law (see also, Martin v Back O’Beyond, 198 AD2d 479 [2d Dept 1993] [where the Court held that measuring windows was a necessary prerequisite for window screen manufacture and hence an injury which resulted while measuring was covered under the Labor Law]). Similarly, in Leubner v McNeil (261 AD2d 777 [3d Dept 1999]), the Court held that a plaintiff who
However, where the activity engaged in at the time of the injury is not incidental or significantly connected to an enumerated activity then liability under the Labor Law will prove unavailing. Thus, in Fairchild v Servidone Corp. (288 AD2d 665 [3d Dept 2001]), the Court held the plaintiff’s injuries which occurred when he fell from a height while obtaining serial numbers from components of a machine were not covered under the Labor Law since such activity was not incidental to any protected or enumerated activity. Obtaining the serial numbers did not further the current construction project in any meaningful way, rather it provided the parties with such serial numbers in case replacement parts were needed. Moreover, in Adair v Bestek Light. & Staging Corp. (298 AD2d 153 [1st Dept 2002]), the Court rejected an argument that a stage worker who fell off a man-lift while adjusting lighting for an upcoming performance was engaged in any covered activity under the Labor Law. The Court noted that all construction work had been completed and, therefore, the work actually engaged could not be deemed incidental or in any way related to covered activity.
These cases reveal that whether or not specific activity is covered under the Labor Law is determined by the activity actually engaged in in relation to the overall job. The Court in LaFontaine (supra) held that, by itself, wallpapering is not a covered activity and absent any contrary ruling that decision is
Therefore, since the plaintiff was engaged in covered work at the time of the accident and all the other elements of the Labor Law statute are satisfied, summary judgment in favor of plaintiff on the issue of liability is granted and the defendant’s cross motion for summary judgment is denied.