MARTINEZ v. L.J. Gonzer Associates, Third-Party Defendant-Respondent.

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

Walfredo MARTINEZ, et al., Appellants, v. CITY OF NEW YORK, et al., Defendants-Respondents, Kaselaan & D'Angelo, Defendant Third-Party Plaintiff-Respondent; L.J. Gonzer Associates, Third-Party Defendant-Respondent.

Decided: July 20, 1998

ROSENBLATT, J.P., RITTER, FRIEDMANN, KRAUSMAN and GOLDSTEIN, JJ. Mahler, Miller, Harris & Engel, P.C., Kew Gardens (Andrew M. Engel, of counsel), for appellants. Michael D. Hess, Corporation Counsel, New York City (Barry P. Schwartz and Susan Choi-Hausman, of counsel), for defendants-respondents City of New York and New York City Board of Education. Agoglia, Fassberg, Holland & Crowe, P.C., Mineola (E. Kevin Agoglia, of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated June 27, 1997, as denied that branch of their motion which was for summary judgment against the defendants City of New York and New York City Board of Education on the issue of liability based upon a violation of Labor Law § 240(1) and granted the cross motion of the those defendants to dismiss for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Walfredo Martinez, an environmental inspector, suffered injuries while inspecting asbestos at a public school in Queens.   In an effort to measure a portion of a pipe extending between the top of a closet and the ceiling, he moved a desk against the closet, climbed onto the desk, held onto the top edge of the closet in an attempt to lift himself further, and fell.

At the time of the accident Martinez was engaged in inspecting and measuring classrooms in order to ascertain the extent of any asbestos damage in preparation for subsequent asbestos removal which, if required, was to be conducted by another entity.   Martinez's inspection job, therefore, was clearly not integral to the job of removing asbestos.   In view of the strict liability imposed by Labor Law § 240(1), “the statutory language must not be strained in order to encompass what the Legislature did not intend to include” (Karaktin v. Gordon Hillside Corp., 143 A.D.2d 637, 638, 532 N.Y.S.2d 891).   Because his job was only to inspect, an activity not specifically enumerated in Labor Law § 240(1), Martinez is not entitled to protection under the statute (see, Lundquist v. Ditmas Realty Co., 230 A.D.2d 830, 646 N.Y.S.2d 827;  see also, Karaktin v. Gordon Hillside Corp., supra;  Greenwood v. Shearson, Lehman & Hutton, 238 A.D.2d 311, 656 N.Y.S.2d 295).

Because I believe that the plaintiff Walfredo Martinez was engaged in activity protected under Labor Law § 240(1), I respectfully dissent.

The New York City School Construction Authority (hereinafter NYCSCA) undertook “Operation Clean House”, a project to remove asbestos from the New York City public schools.   As an integral part of the project, and as a necessary prerequisite to the actual removal, NYCSCA hired the defendant third-party plaintiff Kaselaan & D'Angelo Associates, Inc., inter alia, to locate, identify, and catalog the quantity, condition, and accessibility of all asbestos, and to mark it for removal.   The actual removal of the asbestos was to be accomplished by another contractor.   At the time in question, Martinez worked as an environmental inspector, checking to see if asbestos samples had previously been taken, to check the areas marked as containing asbestos, and to take measurements of the areas where asbestos was found.   He fell while attempting to measure a portion of a pipe that was approximately eight to ten feet off the ground.

Labor Law § 240(1) requires various precautions be undertaken to protect workers from elevation-related hazards during the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240[1];  see also, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Here, Martinez was engaged in an activity that was an integral and necessary part of a project that was within the purview of the statute (see, Martin v. Back O'Beyond, 198 A.D.2d 479, 604 N.Y.S.2d 205;  Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 593 N.Y.S.2d 553;  Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 584 N.Y.S.2d 678;  Cox v. LaBarge Bros. Co., 154 A.D.2d 947, 547 N.Y.S.2d 167).   Thus, Labor Law § 240(1) is applicable (see, e.g., Nowacki v. Metropolitan Life Ins. Co., 242 A.D.2d 265, 661 N.Y.S.2d 536;   Ortega v. Catamount Constr. Corp., 226 A.D.2d 154, 640 N.Y.S.2d 99;  Klapa v. O & Y Liberty Plaza Co., 218 A.D.2d 635, 631 N.Y.S.2d 21).   The cases cited by the majority concern, inter alia, inspections and routine maintenance in non-construction, non-renovation contexts and are, therefore, distinguishable (see, e.g., Greenwood v. Shearson, Lehman & Hutton, 238 A.D.2d 311, 656 N.Y.S.2d 295;  Lundquist v. Ditmas Realty Co., 230 A.D.2d 830, 646 N.Y.S.2d 827).

MEMORANDUM BY THE COURT.

ROSENBLATT, J.P., and FRIEDMANN and KRAUSMAN, JJ., concur.

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