Summary
finding that because defendant had not hired plaintiff to perform construction work he "was not a person `employed' to carry out the repairs as that term is used in the [section 240(1)]" and thus "he was not within the class of workers that [the section was] enacted to protect."
Summary of this case from Serwatka v. Freeman Decorating Corp.Opinion
Argued October 10, 1991
Decided November 25, 1991
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Irving Fudeman, J.
Benjamin M. Zuffranieri, Jr., and R. William Larson for appellant.
Paul William Beltz for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and defendant's cross motion for summary judgment dismissing the second cause of action granted.
Having sustained some damage to the roof of one of its buildings, defendant sought repair estimates from several contractors, including Edward M. Ziegler Co., plaintiff's employer. Plaintiff, a design engineer who had defendant as one of his accounts, went to defendant's building for the purpose of inspecting the damage. While he was being shown the damaged area by defendant's maintenance supervisor, the roof gave way and plaintiff was injured.
Inasmuch as plaintiff's firm had not been hired to perform any construction work on the premises at the time the accident occurred, plaintiff was not a person "employed" to carry out the repairs as that term is used in section 200 (1), section 240 (1) and section 241 (6) of the Labor Law (see, Chabot v Baer, 55 N.Y.2d 844, affg 82 A.D.2d 928). That plaintiff's firm had not volunteered, but rather had been invited by defendant to submit an estimate does not alter the status of the firm from that of a potential bidder to that of an employee. Accordingly, plaintiff was not within the class of workers that those statutory provisions were enacted to protect (see, Mordkofsky v V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577), and he cannot invoke them as a basis for recovery. Instead, plaintiff is entitled to recover only if he can establish the elements of a traditional negligence cause of action, as pleaded in his first cause of action.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.