SPITERI v. [And A Third-Party Action]

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

John SPITERI, et al., Plaintiffs-Respondents-Appellants, v. CHATWAL HOTELS, et al., Defendants-Respondents, President Hotel Company, Defendant-Appellant-Respondent. [And A Third-Party Action]

Decided: February 24, 1998

Before SULLIVAN, J.P., and ELLERIN, NARDELLI, RUBIN and TOM, JJ. John Colucci, for Plaintiffs-Respondents-Appellants. William R. Pirk, Jr., for Defendant-Appellant-Respondent.

Order, Supreme Court, New York County (Carol Arber, J.), entered May 14, 1997, which denied the motion of defendant President Hotel Company [“President”] to dismiss the complaint against it and denied plaintiffs' cross-motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1), unanimously modified, on the law, the cross-motion granted, and the motion granted to dismiss the remaining causes of action against President, and otherwise affirmed, without costs.

This is an action to recover damages for personal injuries sustained by plaintiff John Spiteri on February 13, 1993, when he fell from a ladder permanently affixed to an outside wall of the Best Western President Hotel in New York City, which is owned by President and leased to defendant Chatwal Hotels (“Chatwal”), which operates the hotel pursuant to a franchise agreement with defendant Best Western International Inc. Plaintiff, an elevator repairman for third-party defendant Century Elevator Maintenance Corp., had to climb the ladder to reach an elevator room on the roof of the building in order to repair a broken elevator.   The ladder was not equipped with any safety devices.   As he was climbing the ladder with his tools in one hand, plaintiff slipped and fell about 5 or 6 feet, thereby fracturing his left heel.

On these facts, President moved for summary judgment dismissing the complaint against it and plaintiffs cross-moved for partial summary judgment against President and Chatwal on liability pursuant to their cause of action under Labor Law § 240(1).   The IAS court denied both the motion and the cross-motion.   Plaintiffs and President now appeal.

Pursuant to § 240(1), all owners and their agents engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building have a non-delegable duty to furnish or erect proper scaffolding, ladders or other safety devices to protect employees in the performance of the work (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127, 626 N.E.2d 912).

 Here, we reject President's contention that § 240(1) is not applicable to this situation because the work being performed by plaintiff that day did not qualify as “repair” work but constituted routine maintenance.   While it is well settled that liability under § 240(1) does not apply to “routine maintenance in a non-construction, non-renovation context” (Edwards v. Twenty-Four Twenty-Six Main Street Assocs., 195 A.D.2d 592, 593, 601 N.Y.S.2d 11), the record in this matter indisputably shows that the elevator in question was not working that day.   Under these circumstances, it is clear that “plaintiff was engaged in ‘repair’ work within the meaning of the statute” (Carr v. Jacob Perl Associates, 201 A.D.2d 296, 297, 607 N.Y.S.2d 301, citing Izrailev v. Ficarra Furniture of Long Island, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).   We note that, contrary to President's contention, the record does not offer any evidence supporting its claim that the elevator was working and that plaintiff brought it up to the 15th floor so that he could work on it.   In fact, not only is there no indication that the elevator was functioning at all that day, but the “Service Call Report” prepared by Century reveals that plaintiff was dispatched to the hotel on the day of the accident in response to a call about a “car out”.

 We also reject President's argument that plaintiff's injury does not fall within the purview of § 240 because the ladder from which he fell was permanently affixed to the building (see, Oprea v. New York City Hous. Auth., 226 A.D.2d 310, 311, 642 N.Y.S.2d 633).   Moreover, there is no merit to President's argument that this matter is governed by cases excluding § 240(1) liability for accidents which took place on stairways used by a worker on his or her way to the job site (see, Monroe v. New York State Elec. and Gas Corp., 186 A.D.2d 1019, 588 N.Y.S.2d 483;  Ryan v. Morse Diesel Inc., 98 A.D.2d 615, 469 N.Y.S.2d 354).   Not only are ladders specifically included within the statute's coverage but, here, the ladder constituted the only means of access to the elevator control room, so that plaintiff had to climb it in order to perform his job.   In this situation, we find that the circumstances surrounding his work “subjected him to the sort of risk which section 240(1) was intended to obviate” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932;  see also, Oprea v. New York City Housing Authority, 226 A.D.2d supra, at 311, 642 N.Y.S.2d 633;  Ciraolo v. Melville Ct. Assocs., 221 A.D.2d 582, 634 N.Y.S.2d 205;  Szopinski v. MJ Mechanical Servs., 217 A.D.2d 906, 629 N.Y.S.2d 926, appeal dismissed 87 N.Y.2d 861, 639 N.Y.S.2d 312, 662 N.E.2d 793).

 Since the duty imposed by § 240(1) is nondelegable, an owner or agent who breaches that duty may be held liable regardless of whether it actually exercised supervision or control over the work or whether negligence by the worker contributed to the mishap (Ross v. Curtis-Palmer Hydro-Electric Company, 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v Consolidated Edison Company, supra, at 513, 577 N.Y.S.2d 219, 583 N.E.2d 932).  Accordingly, plaintiffs are entitled to summary judgment on the issue of liability under § 240(1).

While we therefore find that plaintiffs are entitled to summary judgment on their claim under § 240(1), we find that President is entitled to summary judgment dismissing the remaining claims brought against it, which were brought under Labor Law § 241(6), Labor Law § 200 and principles of common-law negligence.

 Section 241(6) of the Labor Law imposes strict liability on owners and their agents for injuries that occur to workers irrespective of the owner's or agent's control or supervision of the worksite where the work was performed during construction, excavation or demolition (see, Mosher v. State of New York, 80 N.Y.2d 286, 590 N.Y.S.2d 53, 604 N.E.2d 115) and where the defendants violated a rule or regulation that sets forth a specific standard of conduct (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Here, since plaintiff has failed to demonstrate that he was working at a construction site and since he alleges only violations of general standards of conduct, his claim under § 241(6) must fail.   Pursuant to Labor Law § 200, an owner is subject to liability only if it is shown to have exercised a certain degree of supervisory control over the worker's activities (see, e.g. Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117).   Here, since there was no evidence indicating either that President had any control over plaintiff's work, or even any involvement in the day-to-day operations of the hotel, plaintiffs' claim against it under § 200 should be dismissed.   We note that plaintiffs did not produce any evidence establishing that President ever exercised its right to re-enter the premises or that President even knew that Chatwal had hired Century.

 Similarly, we reject plaintiffs' claim against President under common-law negligence where plaintiffs have not produced any evidence indicating that President knew that the ladder was defective or dangerous.   In particular, we note that plaintiffs' belated assertion that the ladder violated the Building Code is insufficient to establish a right to recovery under Guzman v. Haven Plaza Housing Development Fund Co. (69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51) where plaintiff raised this allegation for the first time in a Supplemental Bill of Particulars served without leave of court after he filed a note of issue, in violation of CPLR 3043[b].

MEMORANDUM DECISION.