HODGES v. LLC (2005)

Appeal from an order of the Supreme Court (Hester Jr., J.), entered December 2, 2004 in Broome County, which, inter alia, granted a cross motion by defendant Conklin Crushed Stone and Gravel, LLC for summary judgment dismissing the complaint.

Defendant Conklin Crushed Stone and Gravel, LLC (hereinafter defendant) leased a site to plaintiff's employer, who sought to develop it as a gravel pit.   Plaintiff's employer brought a power screen to the property.   The power screen, which is used to screen gravel or make sand, operates by taking material dumped from a pay loader into the hopper end, sending it up a conveyor belt onto the screen, then shaking and vibrating the material to separate the different sizes of stone.   Plaintiff and another employee moved the power screen to the proper spot, leveled it and put blocks underneath it to prevent shifting during operation.   Later, upon the arrival of a chute that can be attached to the conveyor end of the power screen, plaintiff attempted to attach the chute by himself.   He did this by raising the chute in a front-end loader and trying to attach its two connectors to the power screen.   While he was standing with one foot in the loader's bucket and one foot on the chute, approximately 12 to 15 feet in the air, he fell and was injured.

After plaintiff commenced this action alleging violations of Labor Law §§ 200, 240(1) and § 241(6), he moved for summary judgment on his Labor Law § 240(1) cause of action.   Defendant cross-moved for summary judgment dismissing the complaint.   Supreme Court denied plaintiff's motion and granted defendant's cross motion.   Plaintiff appeals, challenging the court's dismissal of his Labor Law § 240(1) and § 241(6) causes of action.

 Regarding his Labor Law § 240(1) cause of action, plaintiff contends that the power screen is a structure and that he was either erecting or altering it at the time of his accident.   The statute requires owners and contractors to provide safety equipment for workers involved “in the erection, demolition, repairing, [or] altering ․ of a building or structure” (Labor Law § 240[1] ).   Courts liberally construe the statute to effect its purpose of protecting workers (see Gilbert v. Albany Med. Ctr., 9 A.D.3d 643, 644, 779 N.Y.S.2d 653 [2004] ).   The Court of Appeals has held that “the word ‘structure’ in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner” (Caddy v. Interborough Rapid Tr. Co., 195 N.Y. 415, 420, 88 N.E. 747 [1909];  see Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434 [1991] ).   Under this broad definition, it appears that the power screen qualifies as a structure (cf. Lewis-Moors v. Contel of N.Y., supra at 943, 573 N.Y.S.2d 636, 578 N.E.2d 434 [telephone pole with attached hardware and cables is a structure];  Cun-En Lin v. Holy Family Monuments, 18 A.D.3d 800, 801, 796 N.Y.S.2d 684 [2005] [crane is a structure];  Cornacchione v. Clark Concrete Co., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572 [2000] [crane is a structure];  Sinzieri v. Expositions, Inc., 270 A.D.2d 332, 333, 704 N.Y.S.2d 293 [2000] [exhibit of windows at trade show constitutes a structure];  Spears v. State of New York, 266 A.D.2d 898, 899, 698 N.Y.S.2d 135 [1999] [dump truck may be a structure];  Girty v. Niagara Mohawk Power Corp., 262 A.D.2d 1012, 1013, 691 N.Y.S.2d 822 [1999] [utility pole and cable lines are structures];  Moore v. Shulman, 259 A.D.2d 975, 688 N.Y.S.2d 854 [1999], lv. dismissed 93 N.Y.2d 998, 695 N.Y.S.2d 744, 717 N.E.2d 1081 [1999] [utility van is a structure];  Loesch v. Long Is. R.R. Co., 165 App.Div. 753, 754, 151 N.Y.S. 499 [1915] [locomotive is a structure];  Imling v. Port Auth. of N.Y. & N.J., 184 Misc.2d 893, 894, 711 N.Y.S.2d 310 [2000], affd. 289 A.D.2d 104, 734 N.Y.S.2d 163 [2001], lv. denied 97 N.Y.2d 613, 742 N.Y.S.2d 605, 769 N.E.2d 352 [2002] [aircraft is a structure];  but cf. Violette v. Armonk Assoc., 808 F.Supp. 1060, 1062-1063 [1992] [bulldozer is not a structure] ).

 While the power screen is a structure, Labor Law § 240(1) only protects plaintiff if he was altering or erecting it at the time of his accident.   Under the statute, altering “requires making a significant physical change to the configuration or composition of the ․ structure” (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998] [emphasis in original];  see Panek v. County of Albany, 99 N.Y.2d 452, 457-458, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003];  Goad v. Southern Elec. Intl., 263 A.D.2d 654, 655, 693 N.Y.S.2d 301 [1999] ).   Here, as the power screen could be used with or without the chute and the chute would be attached or removed as needed, plaintiff's attachment of the chute did not significantly alter the power screen.

 Unlike with altering a structure, the Court of Appeals has not explicitly defined what is required in erecting a structure (see e.g. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 519, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985] [assuming the plaintiff's work constituted erecting under the statute] ).   The dictionary defines the verb erect, in part, as “(1) to put up by the fitting together of materials or parts:  build, (2) to fix in an upright position” (Webster's New Collegiate Dictionary 384 [1979 ed.];   see e.g. Zimmer v. Chemung County Performing Arts, supra at 519, 493 N.Y.S.2d 102, 482 N.E.2d 898 [describing the plaintiff's work of erecting steel skeleton of building];  Sears v. Niagara County Indus. Dev. Agency, 258 A.D.2d 918, 918, 685 N.Y.S.2d 558 [1999];  Yaeger v. New York Tel. Co., 148 A.D.2d 308, 309, 538 N.Y.S.2d 526 [1989] ).   The power screen did not need to be built;  it came assembled.   Plaintiff and his coworker fixed the power screen in an upright position and placed blocks to stabilize it at an earlier time.   Under the circumstances, as plaintiff was merely attaching an optional part at the time of his accident, plaintiff was not erecting the structure of the power screen at that time.   Accordingly, Supreme Court correctly granted defendant's cross motion for summary judgment dismissing plaintiff's Labor Law § 240(1) cause of action.

 Plaintiff's Labor Law § 241(6) claim was also properly dismissed because that statute is “expressly limited to the construction or demolition of buildings or excavation performed in connection with construction or demolition activities”;  thus, the statute does not cover mining activities (Whitaker v. Norman, 146 A.D.2d 938, 939, 536 N.Y.S.2d 916 [1989], affd. 75 N.Y.2d 779, 552 N.Y.S.2d 86, 551 N.E.2d 579 [1989];  see Dorato v. Forest City Enters., 12 A.D.3d 1119, 1120, 785 N.Y.S.2d 626 [2004];  Houde v. Barton, 202 A.D.2d 890, 895, 609 N.Y.S.2d 411 [1994], lv. dismissed 84 N.Y.2d 977, 622 N.Y.S.2d 916, 647 N.E.2d 122 [1994] ).

ORDERED that the order is affirmed, with costs.

KANE, J.

MERCURE, J.P., SPAIN, CARPINELLO and ROSE, JJ., concur.