Goodwin v. Dix Hills Jewish Ctr.

144 A.D.3d 744

41 N.Y.S.3d 104

2016 N.Y. Slip Op. 07293

Eddie GOODWIN, appellant,

v.DIX HILLS JEWISH CENTER, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2016.

Barry McTiernan & Wedinger, P.C., Staten Island, NY (Laurel A. Wedinger of counsel), for appellant.

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, NY (Anton Piotroski of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered May 30, 2014, which granted the defendant's motion for summary judgment dismissing the complaint and denied his motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6).

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), and substituting therefor a provision denying that branch of the defendant's motion, and (2) deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and substituting therefor a provision granting that branch of the plaintiff's motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he fell from a ladder on the defendant's premises. In the complaint, he asserted causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

According to the plaintiff's deposition testimony, on January 30, 2007, the plaintiff, a finisher employed by nonparty Jerry Percoco, was on the fourth day of a job restoring and installing wood paneling in a temple owned by the defendant. The plaintiff's work included installing wood paneling and molding over sheetrock and metal doors. Prior to commencing their work, the plaintiff and his coworkers removed two audio speakers from the wall. As the plaintiff and his coworkers were nearing completion of the work, a rabbi employed by the defendant asked the plaintiff to rehang the two speakers. After consulting with his coworker, Tyrone Faison, the “head finisher,” the plaintiff agreed to rehang the speakers, which required drilling holes and installing brackets in an elevated position in the room. The plaintiff retrieved and used an eight-foot A-frame ladder to hang the first speaker without incident. The plaintiff was in the process of installing the second speaker, standing on the third or fourth rung from the bottom of the ladder, when the ladder suddenly “started swinging,” causing the plaintiff to fall and sustain injuries.

The defendant moved for summary judgment dismissing the complaint, and the plaintiff moved for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The Supreme Court granted the defendant's motion and denied the plaintiff's motion. The plaintiff appeals.

The Supreme Court erred in granting that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), and in denying that branch of the plaintiff's motion which was for summary judgment on the issue of liability on that cause of action. The plaintiff met his burden in moving for summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ), with evidence demonstrating, prima facie, that he was engaged in the “altering” of a building at the time of his accident such that he was entitled to the protections of Labor Law § 240(1). “To successfully assert a cause of action under Labor Law § 240(1), a plaintiff must establish that he or she was injured during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” ( Enos v. Werlatone, Inc., 68 A.D.3d 713, 714, 890 N.Y.S.2d 109, quoting Labor Law § 240[1] ; see Moreira v. Ponzo, 131 A.D.3d 1025, 1026, 16 N.Y.S.3d 813 ). The purpose of Labor Law § 240(1) is the protection of workers from injury, and the statute “ ‘is to be construed as liberally as may be for the accomplishment of [that] purpose’ ” (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 521, 493 N.Y.S.2d 102, 482 N.E.2d 898, quoting Quigley v. Thatcher, 207 N.Y. 66, 68, 100 N.E. 596 [internal quotation marks omitted] ). “ ‘[A]ltering’ within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure” (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 ; see Saint v. Syracuse Supply Co., 25 N.Y.3d 117, 8 N.Y.S.3d 229, 30 N.E.3d 872 ; Belding v. Verizon N.Y., Inc., 14 N.Y.3d 751, 898 N.Y.S.2d 539, 925 N.E.2d 577 ). By contrast, “routine maintenance and decorative modifications” do not constitute the “altering” of a building or structure (Joblon v. Solow, 91 N.Y.2d at 465, 672 N.Y.S.2d 286, 695 N.E.2d 237, citing Smith v. Shell Oil Co., 85 N.Y.2d 1000, 630 N.Y.S.2d 962, 654 N.E.2d 1210 and Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938, 641 N.Y.S.2d 221, 663 N.E.2d 1251 ; see Hatfield v. Bridgedale, LLC, 28 A.D.3d 608, 609, 814 N.Y.S.2d 659 ). Here, the plaintiff was engaged in the alteration of a building, as the installation of wood paneling, which changed the dimension, thickness, and composition of the sheetrock walls and steel doors, constituted a significant physical change to the configuration or composition of the building (see Saint v. Syracuse Supply Co., 25 N.Y.3d 117, 8 N.Y.S.3d 229, 30 N.E.3d 872 ; Belding v. Verizon N.Y., Inc., 14 N.Y.3d at 752, 898 N.Y.S.2d 539, 925 N.E.2d 577 ; cf. Adika v. Beth Gavriel Bukharian Congregation, 119 A.D.3d 827, 989 N.Y.S.2d 375 ).

Although the defendant contends that the act of rehanging a speaker does not constitute the “altering” of a building or structure, “[t]he intent of [Labor Law § 240(1) ] was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts ” (Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [emphasis added] ). The plaintiff was injured while rehanging a speaker that he and his coworkers had removed to enable them to install the wood paneling and, therefore, we conclude that the plaintiff was injured while performing work that was “ancillary to” a covered activity, entitling him to the protections afforded by Labor Law § 240(1) (see Lijo v. City of New York, 31 A.D.3d 503, 503–504, 818 N.Y.S.2d 569 ; see also Prats v. Port Auth. of N.Y & N.J., 100 N.Y.2d at 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 ). “To myopically focus on a job title or the plaintiff's activities at the moment of the injury would be to ignore the totality of the circumstances in which the plaintiff and his employer were engaged in contravention of the spirit of the statute which requires a liberal construction in order to accomplish its purpose of protecting workers” (Aguilar v. Henry Mar. Serv., Inc.,

12 A.D.3d 542, 544, 785 N.Y.S.2d 95 [internal quotation marks omitted] ).

Further, the plaintiff established, prima facie, the existence of a violation of Labor Law § 240(1) that was a substantial factor in causing his injuries (see Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). “A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1). There must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries” (Melchor v. Singh, 90 A.D.3d 866, 868, 935 N.Y.S.2d 106 [citation omitted]; see Artoglou v. Gene Scappy Realty Corp., 57 A.D.3d 460, 461, 869 N.Y.S.2d 172 ). Here, the plaintiff's proof established that the ladder from which he fell was inadequately secured to provide him with proper protection, and that the failure to secure the ladder was a proximate cause of his injuries (see Assevero v. Hamilton & Church Props., LLC, 131 A.D.3d 553, 557, 15 N.Y.S.3d 399 ; Grant v. City of New York, 109 A.D.3d 961, 962, 972 N.Y.S.2d 86 ).

In opposition, the defendant failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). The defendant's contention that the plaintiff was the sole proximate cause of the accident because he failed to keep his center of gravity within the confines of the ladder is without merit (see Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 662, 11 N.Y.S.3d 201 ; Przyborowski v. A&M Cook, LLC, 120 A.D.3d 651, 653, 992 N.Y.S.2d 56 ; see also Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 ; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 ; cf. Bascombe v. West 44th St. Hotel, LLC, 124 A.D.3d 812, 813, 2 N.Y.S.3d 569 ; Allan v. DHL Express [USA], Inc., 99 A.D.3d 828, 833, 952 N.Y.S.2d 275 ...