Opinion
CA 03-01301.
February 11, 2004.
Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered September 9, 2002. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment on liability on the Labor Law § 240 (1) claim.
LEWIS LEWIS, P.C., BUFFALO (RICHARD P. AMICO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICES OF JOHN QUACKENBUSH, BUFFALO (JOHN WALLACE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.
Memorandum: Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint and properly denied plaintiff's cross motion for partial summary judgment on liability on the Labor Law § 240 (1) claim. Plaintiff was injured in the course of removing, repairing and reinstalling a single window screen at an apartment complex. We conclude that those activities constitute "routine maintenance in a non-construction, non-renovation context" ( Farmer v. Central Hudson Gas Elec. Corp., 299 A.D.2d 856, 857, amended 302 A.D.2d 1017, lv denied 100 N.Y.2d 501), as opposed to the statutorily protected "repairing [or] altering . . . of a building or structure" (§ 240 [1]; see Noah v. IBC Acquisition Corp., 262 A.D.2d 1037, lv dismissed 93 N.Y.2d 1042; see also Abbatiello v. Lancaster Studio Assoc., 307 A.D.2d 788, 789-790; Rogala v. Van Bourgondien, 263 A.D.2d 535, 536-537, lv denied 94 N.Y.2d 758; Czaska v. Lenn Lease, 251 A.D.2d 965, 966).
All concur except GORSKI and LAWTON, JJ., who dissent and vote to reverse in accordance with the following Memorandum: We respectfully dissent. As this case demonstrates, the distinction between what constitutes "inspection" or "routine maintenance" and "altering or repairing" of a structure is difficult to apply and may require a different test from the one the majority employs to determine whether an activity does or does not fall within the protection afforded under Labor Law § 240 (1). It is because of that difficulty that the Court of Appeals in the recent case of Prats v. Port Auth. of N.Y. N.J. ( 100 N.Y.2d 878, 883) stated that whether a particular activity falls within the provisions of section 240 (1) "must be determined on a case-by-case basis, depending on the context of the work" and whether the worker was undertaking the kind of work the Legislature intended to protect. Applying that more practical test to the facts of this case, we conclude that plaintiff is entitled to the protection afforded by section 240 (1). First, plaintiff was hired to work at the job site as a construction worker and was not a handyman or person accustomed to performing routine repairs or maintenance. The work undertaken by plaintiff involved an enumerated activity, i.e., working at a great height on a ladder. Finally, plaintiff's duties as a construction worker were part of an overall construction contract, and routinely involved working at heights. Consequently, we believe that the provisions of section 240 (1) should apply.
In any event, we do not believe that the removal, repair and replacement of a broken screen constitutes "routine maintenance" rather than "altering or repairing" of a structure. This Court has held that the removal, repair and replacement of the blower motor of a ventilation system falls within the ambit of Labor Law § 240 (1) ( see Holka v. Mt. Mercy Academy, 221 A.D.2d 949, 950, lv dismissed 87 N.Y.2d 1055), as does the repair of a broken door-closing mechanism ( see Shapiro v. ACG Equity Assoc., 233 A.D.2d 857) and the replacement of beverage supply lines at a restaurant ( see Lang v. Mancuso Son, 298 A.D.2d 960, 961). In each of those cases, we determined that the work the plaintiffs were doing was in the nature of "altering" or "repairing" rather than routine maintenance. Farmer v. Central Hudson Gas Elec. Corp. ( 299 A.D.2d 856, amended 302 A.D.2d 1017, lv denied 100 N.Y.2d 501), cited by the majority in support of its determination that the work at issue here constitutes routine maintenance not covered by Labor Law § 240 (1), is distinguishable. Farmer involved the regularly-scheduled cleaning of ash hoppers, not, as in this case, a request for immediate repair. We view the work performed by plaintiff in this case to be more akin to the work performed by the plaintiffs in Holka, Shapiro and Lang, inasmuch as plaintiff was asked to remove, repair, and replace a broken, inoperable screen.
The recent case of Esposito v. New York City Indus. Dev. Agency ( 1 N.Y.3d 526 [Nov. 20, 2003]) is also distinguishable. In that case, the plaintiff was performing a monthly maintenance check on an air conditioning unit and, pursuant to that check, he was replacing worn belts when he fell from a ladder. Thus, the work that the plaintiff was performing in that case was related to a regularly-scheduled maintenance check due to ordinary wear and tear, not, as here, a nonscheduled repair of an inoperable piece of equipment. Esposito, therefore, does not compel the result reached by the majority.
Thus, we would reverse the order, deny defendant's motion for summary judgment, reinstate the complaint and grant plaintiff's cross motion for partial summary judgment on liability on the Labor Law § 240 (1) claim.