SWEET v. PACKAGING CORPORATION OF AMERICA

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

Levi F. SWEET, Respondent, v. PACKAGING CORPORATION OF AMERICA, Tenneco Packaging, Formerly Known as Packaging Corporation of America, et al., Appellants.

Decided: August 01, 2002

Before:  CARDONA, P.J., CREW III, SPAIN, ROSE and LAHTINEN, JJ. Carter, Conboy, Case, Blackmore, Maloney & Laird P.C., Albany (Karen Collins of counsel), for Packaging Corporation of America, Tenneco Packaging, appellant. Hanlon, Veloce & Wilkinson, Albany (Christine D'Addio Hanlon of counsel), for Monahan-Loughlin Inc., appellant. James C. Hayes III, Amsterdam, for respondent.

Appeal from an order of the Supreme Court (Best, J.), entered September 25, 2001 in Montgomery County, which denied defendants' motions for summary judgment dismissing the complaint.

Defendant Packaging Corporation of America, Tenneco Packaging, formerly known as Packaging Corporation of America, contracted with defendant Monahan-Loughlin Inc. to replace the roof of a building owned by it.   Monahan-Loughlin, in turn, subcontracted with A Plus Environmental Services, plaintiff's employer, for the removal of asbestos roofing material from the building, which entailed, inter alia, cutting the roof into four-foot square sections for disposal. On October 19, 1995, plaintiff and a co-worker were engaged in removing the four-foot square sections of roofing by simultaneously lifting a section and placing it in a wheelbarrow.   As they were lifting one such section, plaintiff's co-worker slipped on wet roofing debris causing the full weight of the section to shift onto plaintiff's shovel which, in turn, caused plaintiff to fall and injure his back.

Plaintiff thereafter commenced this action asserting, inter alia, a cause of action under Labor Law § 241(6).   Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint.   Supreme Court denied the motions and defendants now appeal.

At his pretrial deposition, plaintiff testified that it had rained the night before the accident, as a result of which the roof that he was working on was wet and slippery.   Plaintiff further testified that this slippery condition was caused by the asbestos fibers on the roof becoming wet from the previous evening's rain.   Finally, plaintiff testified that he complained to his supervisor about the slippery conditions, but nothing was done in that regard.

Defendants contend that the roof fibers upon which plaintiff's co-worker allegedly slipped constituted an integral part of the worksite and, thus, no liability may be imposed pursuant to Labor Law § 241(6) (see, e.g., Moses v. Pinazo, 265 A.D.2d 391, 697 N.Y.S.2d 66;  Creamer v. Amsterdam High School, 241 A.D.2d 589, 659 N.Y.S.2d 560).   We disagree.   Labor Law § 241(6) mandates that all contractors and owners must provide reasonable and adequate protection to workers on a construction project and authorizes the Commissioner of Labor to promulgate regulations to effectuate that subsection.   Pursuant to the general provisions of the Industrial Code, employers are prohibited from permitting an employee to work on an elevated surface that is in a slippery condition and, specifically, are directed to remove, sand or cover any ice, snow, water, grease or other foreign substance that may cause slippery footing (see, 12 NYCRR 23-1.7[d] ).  Here, according to plaintiff, it had rained the night before the accident causing the asbestos fibers on the roof to become dangerously slippery.   While there can be no doubt that the fibers constituted an integral part of the worksite, the precipitation causing them to become slippery did not, and defendants' alleged failure to remedy the slippery condition is actionable.   We have considered Monahan-Loughlin's additional contentions and find them equally unpersuasive.

ORDERED that the order is affirmed, with costs.

CREW III, J.

CARDONA, P.J., SPAIN, ROSE and LAHTINEN, JJ., concur.

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