•
Owner of Land
Beneath Condominium Building Is Not “Owner” or “Agent of Owner” Under Labor Law
§ 241(6).
The Court of
Appeals case of Guryev v. Tomchinsky arises
from renovation work being done at the Tomchinsky’s condominium unit and an
alleged injury to plaintiff’s eye while operating a nail gun. Plaintiff
commenced a personal injury action against the Tomchinskys, as well as his
employer, YZ Remodeling, Inc., and the condominium defendants, made up of Trump
Corporation and its Board of Managers.
The condominium defendants moved for
summary judgment and were denied on the grounds there were issues of fact. The Appellate Division reversed the lower
court and granted the condominium defendants’ motion for summary judgment,
holding that these defendants “were not entities which had an interest in the
property and who fulfilled the role of owner by contracting the have work
performed for their benefit.”
The threshold
issue before the Court of Appeals is whether the condominium defendants are
“owners” or “agents of owners” of the Tomchinsky’s apartment so as to trigger
liability for failing to “provide reasonable and adequate protection and
safety” to workers under Labor Law § 241(6).
The Court of
Appeals affirmed the Appellate Division’s decision, reasoning that these
defendants “did not determine which contractor to hire, and were not in a
position to control the renovation work or to insist that proper safety
practices were followed,” and they were therefore free form liability under
Labor Law § 241(6).
Relying in part
on its earlier decision in Gordon v.
Eastern Ry. Supply, the Guyrev
Court distinguished its prior holding in that case on the grounds that here, in
the absence of a lessee-lessor relationship, and where the Tomchinskys owned
their unit in fee simple absolute, the condominium defendants “are not the
owner’s agents within the meaning of the Labor Law.” Here, the Tomchinsky
apartment, where the alleged injury occurred, is real property separate and
apart from the land beneath the condominium building. In addition, the
mandatory Alteration Agreement, signed by Mr. Tomchinsky, did not give the
condominium defendants authority to determine which contractors to hire,
control the renovation work, or insist that proper safety practices be
followed.
In his dissent,
Chief Judge Lipman focuses more closely on the terms of the Alteration
Agreement which provide that proposed alterations be subject to condominium
approval; that such approval could be withheld in the Board’s “sole and
absolute discretion;” that the condominium retained power to insist upon
compliance with the Industrial Code worker safety provisions; and that the
condominium reserves the right to reentry “for the purpose of inspecting [the
work] to ensure [the work] is being performed and has been performed in
accordance with the [approved] plans.” Judge Lipman also argues that the
majority’s decision significantly reduces the avenues of recovery for an
injured construction laborer, who “now has no Labor Law cause o action against
the unit owner by reason of the single dwelling exemption, no claim against his
contractor employer by reason of the workers’ compensation defense, and no
statutory claim against the condominium because it is not the title owner of
the unit.
•
Court of Appeals
Lays Out Four Factors to Determine Whether Activity Falls Within the Definition
of “Cleaning” Under Labor Law § 204(1).
This Survey year, the Court of Appeals in Soto v. J. Crew Inc., re-visited the
issue of commercial “cleaning” as that term is used in Labor Law § 240(1) and has been discussed in various
other cases.
In Soto, the plaintiff, an employee of a
commercial cleaning company hired to provide janitorial services for a J. Crew
retail store was injured when he fell from a four-foot-tall ladder while
dusting a six-foot-high display shelf. Plaintiff positioned a four-foot-high
A-frame ladder on the floor in front of the shelf and both he, and the ladder,
fell over while Plaintiff was dusting the shelf, causing him to injure his back,
knew, and elbow. Plaintiff commenced a personal injury action against J. Crew
and the building’s owner seeking recovery under Labor Law § 240(1). The Supreme
Court dismissed plaintiff’s Labor Law claim, on the basis that “the statue does
not apply to workers employed on a daily basis to conduct routine commercial
cleaning, such as the dusting, sweeping, mopping and general tidying” at issue
in this case.
The Appellate
Division affirmed, holding that “the dusting of the shelf constituted routine
maintenance and was not the type of activity that is protected under the
statute.”
The Court of
Appeals affirmed the decision of the two lower courts, relying on its 2012
decision in Dahar v. Holland Ladder &
Mfgr. Co., which denied recovery to a manufacturing-plant employee injured
while cleaning a large wall module at the conclusion of the manufacturing
process. In Soto, the Court revisited
the window-washing cases it discussed in dicta in Dahar, and distinguished those cases from the instant matter on the
grounds that “routine commercial cleaning” was never intended by the
Legislature to be covered under the Labor Law. In reaching its decision, the
Court recognized four factors that, when viewed in totality, suggest a task
cannot be characterized as “cleaning” under the Labor Law, if the task:
(1) is routine, in the sense that it is the type of job that occurs on
a daily, weekly or other relatively-frequent and recurring basis as part of the
ordinary maintenance and care of commercial premises; (2) requires neither
specialized equipment or expertise, nor the unusual deployment of labor; (3)
generally involves insignificant elevation risks comparable to those inherent
in typical domestic or household cleaning; and (4) in light of the core purpose
of Labor Law § 240(1) to protect construction workers, is unrelated to any
ongoing construction, renovation, painting, alteration or repair project.
Applying these factors in this case,
the Court concluded that the activity undertaken by Soto was not “cleaning”
within the meaning of the statute because the dusting of a six-foot-high shelf
is the type of routine maintenance conducted in retail stores; the activity did
not require specialized equipment or knowledge, and could be completed by a
single custodial worker; and the elevation risks involved were those comparable
to a person doing ordinary household cleaning.
•
Mechanical
Operation of Backhoe by an Allegedly Negligent Co-Worker Does Not Constitute
“Falling Object” Under Labor Law § 240(1) Absent the Application of Force of
Gravity
In Mohammed v. City of Watervliet, the
Appellate Division, Third Department, affirmed the lower courts grant of
summary judgment to the defendants on the grounds that plaintiff failed to
demonstrate, as a matter of law, that a violation of Labor Law § 240(1)
occurred when he was injured by the lowering bucket of a backhoe.
At the time of
plaintiff’s injury, plaintiff and two co-workers were in a trench installing a
T-connection to an existing water main. The T-connection was being lowered on a
chain, which was secured to the bucket of a backhoe. The operator of the
backhoe left the cab to check on the placement of the T-connection. While
plaintiff worked to secure the T-connection, the bucket of the backhoe was
suspended approximately 3 ½ feet above his head. The operator returned to the cab of the
backhoe, and the bucket descended into the trench and crushed plaintiff.
Plaintiff and his wife, derivatively, brought a lawsuit against the City
pursuant to Labor Law §§ 240(1), 241(6), 200, and common law negligence.
The Appellate
Division affirmed the dismissal of plaintiff’s §241(1) and §240(6) claims by
the lower court, reasoning that “the statute’s protection does not encompass
any and all perils that may be connected in some tangential way with the
effects of gravity, but is limited to those types of accidents in which the
scaffold, hoist, stay, ladder or other protective device has proved inadequate
to shield the injured worker from harm directly flowing from the application of
the force of gravity to an object or person.”
In Mohamed, although plaintiff considers
this to be a “falling object” case, arguing that the backhoe was acting as a
“hoist,” the Appellate Division held that liability does not extend to “harm
caused by an inadequate, malfunctioning, or defectively designed scaffold, stay
or hoist unless the injury itself was caused by the application of the force of gravity to an object or person.” Here, it was determined from the evidence
that the backhoe bucket crushed plaintiff not because of a force of gravity,
but because of its mechanical operation by an allegedly negligence co-worker.
There being no “application of the force of gravity” that led to plaintiff’s
injury, the harm that befell plaintiff was a consequence of the usual and
ordinary dangers that exist at a construction site. The Appellate Division also
affirmed the dismissal of plaintiff’s § 241(6) claim on the grounds that it
improperly alleged violations of 12 NYCRR 23-9.4(h)(5) because the load (i.e.
the T-connection) was not being suspended over plaintiff’s head at the time of
his injury.
•
Glass Pane Installed in Metal Frame Four Feet Off
the Ground Was Slated for Demolition, and Therefore Was Not An Object that
Required “Securing” For Purposes of Labor Law § 240(1).
In another “falling object” case, the
Appellate Division, Second Department, upheld the dismissal by the lower court
of plaintiff’s Labor Law § 240(1) claim.
Plaintiff
was employed to demolish the interior partition wall in a commercial building.
The plaintiff was holding a glass pane that had been installed in a metal frame
built into the wall, while a co-worker attempted to dislodge it from the frame.
The glass pane cracked and fell, injuring plaintiff.
The
Court relied on settled law, which holds that the plaintiff must demonstrate
that at the time the object fell it was being hoisted or secured, or that it
required securing, and that the object fell because of the absence or
inadequacy of a safety device. In Maldonado,
the glass pane was slated for demolition at the time of the accident, and
therefore, was not an object that required securing for the purposes of the
statue.