WEHMEYER v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY (1998)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 18, 1996, which granted defendants' motions for summary judgment dismissing the complaint, and denied plaintiff's cross-motion for summary judgment on liability as against all defendants, unanimously modified, on the law, to deny the motion of defendants Eastern Airlines and Port Authority to dismiss plaintiff's Labor Law § 240(1) claim, and otherwise affirmed, without costs.

Plaintiff stepped from a ladder, which was placed next to a New York Helicopter ticket counter in the Eastern Airlines terminal, onto the counter, to inspect a sign he had hung on the wall.   Plaintiff was unable to place the ladder in the space between the counter and the wall.   He slipped on debris that was on the counter, while stepping backward to determine whether the sign was level.   He fell to the ground and sustained multiple injuries, including fractured ribs and a contusion of his left kidney.

 Because there is an outstanding factual issue as to whether plaintiff's employer provided safe and adequate equipment to protect against this elevation-related risk, we reinstate plaintiff's Labor Law § 240(1) claim against defendants Eastern Airlines and Port Authority (Prekulaj v. Terano Realty, 235 A.D.2d 201, 652 N.Y.S.2d 10).   However, the IAS court properly dismissed plaintiff's claims against New York Helicopter and against ASI, the manufacturer of the sign.

 Section 240(1) imposes absolute liability on “contractors and owners and their agents” for worker injuries caused by certain elevation-related risks.   However, New York Helicopter was not the owner of the work area where plaintiff fell;  rather, it was only a prospective sub-lessee of that portion of the Eastern Airlines Terminal.   A party will not be held liable as a “contractor” under § 240(1) unless he exercised some direction, control or supervision over the work (Saaverda v. East Fordham Road Real Estate Corp., 233 A.D.2d 125, 126, 649 N.Y.S.2d 416 [no § 240(1) liability for out-of-possession lessee who neither contracted for nor supervised plaintiff's work] ).   Similarly, ASI did not supervise the hanging of the sign.   Though ASI surveyed the site to see what was required, and met with a Service Sign representative to review the installation requirements, this court has previously held that such general directions to the subcontractor that employed the injured worker do not constitute sufficient control to give rise to § 240(1) liability (Mulligan v. Cauldwell-Wingate Co., 18 A.D.2d 887, 888, 237 N.Y.S.2d 677).

We have considered and rejected the plaintiff's remaining contentions.

The Decision and Order of this Court entered herein on September 4, 1997, is hereby recalled and vacated.   See M-6261, 6722 and 7666 decided simultaneously herewith.

MEMORANDUM DECISION.