State of New York
Supreme Court : County of Monroe

- against -

Index No. 96/1450

ANDREW V. SIRACUSE, J.

This Labor Law case involves the interpretation of a very recent Court of Appeals case, Melber v 6333 Main St., Inc, (91 N.Y.2d 759), decided this past June. The plaintiff in the present action was installing a drop ceiling in a Canandaigua storefront. The Automobile Club of Rochester (a branch of the American Automobile Association, and henceforth "AAA") had leased the space to open as a travel agency. The lease had been signed before the work was begun, but the lease term was set to begin when the space was renovated, which necessarily had not happened at the time of the construction accident. Parkway Plaza, a subsidiary of Conifer Realty, was the owner of the property, and had contracted out the work.

The plaintiff was wearing stilts, his own pair, to elevate him to the ceiling level. Before he began work he made sure the floor was clean. After working for about an hour and a half he walked across the floor because he wanted to move his materials to a better location in the room, and he stepped on something on the floor, injuring himself as he fell against the wall. (He did not fall to the floor.) He stated at deposition that he stumbled on a 2-by-4, but had earlier reported that the object was a piece of ceiling grid. Plaintiff did not see who placed the object on the floor, but he believes those responsible were carpenters, from Shayoung Corporation, workers he characterized as having "attitude problems" and who, he maintained, threw scraps of wood and other trash around. Shayoung's employees denied at EBT that they were responsible.

Shayoung had been engaged by AAA. While the structural renovation (under which the plaintiff was hired) was the landlord's responsibility, AAA did other work -- the so-called "tenant's work" -- on the premises and engaged contractors for that purpose.

The major difficulty in this case is disentangling the theories of liability and the parties' motions. The plaintiff sued under all three Labor Law sections usually employed. Every defendant cites Melber to oppose the § 240(1) claim. AAA has moved to dismiss all three claims, arguing that it cannot be liable under §§ 241(6) and 200(1) because it had no supervision or control over the work. (AAA also argues this with respect to § 240[1].) In the alternative, AAA wants indemnification and defense from Parkway.

Parkway moves to dismiss the § 200(1) claim because there was no notice of any dangerous condition and no supervision and control by Conifer; but Parkway does not move to dismiss the § 241(6) claim. Shayoung argues that it has no established connection with the happening of the accident, so it should be let out as well.

Beside opposing the various defendants' motions, the plaintiff has cross-moved for partial summary judgment as to liability, arguing that Melber does not apply and that AAA was acting as general contractor for the entire project. Plaintiff also argues that the lease relationship already existed even though the lease term had not begun.

The first issue is the scope of the Melber case and the viability of the § 240(1) claim. The case seems to the defendants to be on all fours with the present one. The plaintiff, on the other hand, argues that the Melber plaintiff was not engaged in a "protected activity" when he fell, unlike himself. The plaintiff's position is a misconstruction of Melber. In that case a worker was using stilts to install studs on top of drywall. He went down a corridor to get a clamp, without removing his stilts, and tripped on exposed electrical conduit and fell to the floor.

The Court of Appeals found that the risk of tripping on the conduit was not an elevation-related hazard that entitled plaintiff to the "extraordinary protection" of Labor Law § 240(1). The court admitted that the exposed conduit was a hazard, but it was neither elevation-related nor one that would be averted by the use of the safety devices enumerated in the statute. Moreover, the stilts functioned perfectly in allowing safe working at a height:

To be sure, conduit protruding from an unfinished floor--like a trough filled with hot oil--is a hazard in the workplace against which employees should be protected. However, neither the trough nor the conduit is a risk that can be avoided by proper placement or utilization of one of the devices listed in Labor Law § 240(1). The protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered here. Thus, we agree with the Appellate Division dissent that the "proper 'erection,' 'construction,' 'placement' or 'operation' of one or more devices of the sort listed in section 240(1)" would not have prevented plaintiff's injuries (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, supra).

Had they failed while plaintiff was installing the metal studs in the top of the drywall--work requiring the statute's special protections--a different case would be presented. But here, as was the case in Ross, injury resulted from a separate hazard--electrical conduit protruding from the floor. Even if the stilts failed to avoid that pitfall, "plaintiff's injuries allegedly flowed from a deficiency in the device that was 'wholly unrelated to the hazard which brought about its need in the first instance' " and did not interfere with or increase the danger of injury in the performance of his elevation-related task (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d, at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82, supra, quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 180 A.D.2d 385, 394, 585 N.Y.S.2d 516 [Mercure, J., dissenting in part] ). Thus, plaintiff must look elsewhere for his remedy.

This is not so exceptional a reading of the statute, especially since the risk of tripping is not significantly increased by the use of stilts. Further, it is a risk that is addressed in the Industrial Code, which requires work areas and passageways to be kept free from debris and tripping hazards.

The present case is impossible to distinguish from Melber. The plaintiff's stilts functioned perfectly; his injury was caused by stepping on the wood (or, as he said at the time, some ceiling grid). The stilts, then, had no connection with the cause of the accident.

Furthermore, the plaintiff's claim that the Melber court based its decision on the plaintiff's not being engaged in a protected activity is erroneous. Not only was there no failure in the stilts, but in searching for a clamp the Melber plaintiff was as much engaged in his work as Mr. Alabaugh was when he decided to move the location of his material.

Plaintiff also argues that it was illegal to use stilts for this work, because the Industrial Code forbids their use for anything other than drywall construction; that there was no notice of use as required, and that the stilts elevated plaintiff by 41 inches when 24 inches is the maximum under the Code. There is, however, no connection between violations of the Industrial Code and liability under § 240(1), although the supposed illegality of the use of stilts may conceivably be raised under § 241(6). The stilts may have been improperly utilized, but once again it is important to note that there was no flaw in their operation and plaintiff's injuries were not caused by their use. The plaintiff's claim under Labor Law § 240(1) is dismissed.

The court turns next to the § 200(1) and common law negligence claims. Whatever the status of AAA, an issue that will be treated below, there can be no doubt that neither it nor any of the other defendants had direct supervisory control over the work area. Conifer/Parkway has denied its supervision and control, and the plaintiff has not controverted this denial. Since both common law negligence and its codification in § 200(1) require both supervision and notice of the possible danger, the court can see no common-law negligence chargeable to any defendant, even Shayoung, whose role in this matter is entirely speculative.

In fact, the presence of Shayoung in this lawsuit is based purely on the plaintiff's speculation that it might have been its employees who were responsible for the board on the floor. In a summary judgment posture this is less than adequate. Regardless of the number of contractors and subcontractors on the site, the past activity of Shayoung's employees is obviously inadmissible to establish whether or not they were responsible for the specific piece of wood that may have been the cause of the accident. In a summary judgment motion the evidence must be in admissible form. Plaintiff's accounts of the past conduct of Shayoung's employees is no more admissible than any other habit testimony. There is nothing properly before the court that ties Shayoung into this matter.

The section 200(1) and common law negligence claims are thus dismissed, and the complaint against Shayoung is dismissed in its entirety. Since Parkway has not moved to dismiss the § 241(6) action the court now turns to AAA's motion with respect to § 241(6) and the plaintiff's cross-motion with respect to the same section.

It is rare indeed that summary judgment can be granted for a plaintiff in a § 241(6) case, and this is no exception. At best the plaintiff has raised a fact question as to the negligent maintenance of the work site. The only other question, then, is whether AAA is in any way tied into the action by virtue either of its contract to lease the space or as a supposed general contractor.

AAA characterizes the plaintiff's claim that it was general contractor as ludicrous, but it did in fact contract with a number of entities -- Shayoung among them -- to do the "tenant's work". Regardless of its own self-characterization, AAA was, though not the general contractor for the entire project, a general contractor with respect to a great deal of the work.The shared responsibility for managing the construction exposes AAA to the same liability as Conifer/Parkway Plaza. Although Shayoung's role is irrelevant, AAA may well be chargeable with failure to see that the work area was kept clear of debris, tripping hazards, and such, as required by the Industrial Code. The court therefore denies the plaintiff's cross-motion, but denies as well that portion of AAA's motion that seeks dismissal of the § 241(6) claim.

There remains a § 241(6) case against AAA and Conifer/Parkway. Because of this, and because AAA's liability may prove to be independent of Parkway's conduct, AAA's motion for indemnification and defense against Parkway is denied as well. Counsel for Parkway may prepare the order. DATED: Rochester, New York

September 24, 1998

Andrew V. Siracuse, J.S.C.

Affirmed for the reasons stated herein by the Appellate Division, Fourth Department, on October 1, 1999.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.