Opinion
Decided December 23, 1999
Cross appeals from an order of the Supreme Court (Lahtinen, J.), entered November 16, 1998 in Franklin County, which granted plaintiffs' cross motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 Lab. (1) and partially denied defendant's motion for summary judgment dismissing the complaint.
Smith, Sovik, Kendrick Sugnet (Mary Kendrick-Gaffney of counsel), Syracuse, for appellant-respondent.
Poissant Nichols P.C. (Stephen A. Vanier of counsel), Malone, for Michael Hutchins and another, respondents-appellants.
Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.
MEMORANDUM AND ORDER
Plaintiff Michael Hutchins (hereinafter plaintiff) was employed by O'Neill Brothers Trucking Inc. as a truck driver engaged in the work of hauling wood for sale to various paper mills. On December 29, 1992, plaintiff drove a tractor-trailer containing a full load of eight-foot logs to the papermaking plant of defendant where the logs were sawed into four-foot lengths while still on the trailer and then unloaded. Plaintiff then drove the truck to the cleaning area provided by defendant on its premises where he proceeded to clean the bed of the trailer of chunks of wood, sawdust, chunks of ice and snow and other debris as required by defendant. As plaintiff was shoveling off the trailer, he fell off the trailer and sustained serious injures.
Plaintiff and his wife, derivatively, commenced this action contending that defendant was negligent and violated Labor Law §§ 200 and 240 (1). After commencing a third-party action against O'Neill, defendant moved for summary judgment dismissing all of plaintiffs' causes of action, which O'Neill joined. Plaintiffs opposed defendant's motion and cross-moved for partial summary judgment on the issue of liability pursuant to Labor Law § 240 Lab. (1). Supreme Court granted defendant's motion seeking dismissal of plaintiffs' causes of action based on common-law negligence and Labor Law § 200 Lab., and granted plaintiffs' cross motion for summary judgment with respect to liability on the basis of Labor Law § 240 Lab. (1). Defendant and plaintiffs now appeal.
On plaintiffs' appeal they contend that Supreme Court erred in granting defendant summary judgment dismissing their common-law negligence and Labor Law § 200 Lab. causes of action. Liability under Labor Law § 200 Lab. — like the common-law duty of owners to provide a reasonably safe working environment which it codifies (see,Lombardi v. Stout, 80 N.Y.2d 290, 294; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299) — requires a showing that the owner exercised some supervisory control over the operation and had actual or constructive notice of the alleged unsafe condition that caused the accident (see, Monroe v. Bardin, 249 A.D.2d 650, 652-653;Armer v. General Elec. Co., 241 A.D.2d 581, 583, lv denied 90 N.Y.2d 812;Mastin v. Albany Hous. Auth., 226 A.D.2d 995, 996; Lawyer v. Rotterdam Ventures, 204 A.D.2d 878, 880-881, lv dismissed 84 N.Y.2d 864).
The record discloses that if logging suppliers such as O'Neill elected to deliver eight-foot logs to defendant's paper mill but desired to be paid the higher price for four-foot logs, defendant's employees would cut the logs while still on the logging trucks using defendant's saws. Defendant directed that the logging companies have their drivers clean their trucks prior to leaving the mill to minimize the discharge of debris on neighboring city streets. Although defendant provided a designated cleaning area and handheld cleaning equipment such as shovels and brooms, the actual cleaning was left entirely to the log truck driver and no person employed by defendant exercised any supervisory control over this process (see, Demeza v. American Tel. Tel. Co., 255 A.D.2d 743, 745). Thus, plaintiffs' Labor Law § 200 Lab. and common-law negligence claims were properly dismissed.
Turning to defendant's appeal, we agree that summary judgment should not have been granted to plaintiffs on the issue of liability on their Labor Law § 240 Lab. (1) claim and that defendant's motion for summary judgment dismissing that claim should have been granted. As an initial matter, we find that defendant qualifies as an "owner" subject to the nondelegable duty imposed by this absolute liability statute based upon defendant's ownership of the property on which plaintiff was injured, notwithstanding O'Neill's ownership of the log truck itself (see,Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 560; Ampolini v. Long Is. Light. Co., 186 A.D.2d 772). Likewise, the definition of "structure" is sufficiently broad to encompass the log truck herein (see, Gordon v. Eastern Ry. Supply, supra, at 560;Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942, 943). We also have no difficulty in concluding that plaintiff's fall from the truck is the type of gravity-related accident protected by Labor Law § 240 Lab. (1) (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494;Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514; Curley v. Gateway Communications, 250 A.D.2d 888; cf., Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487).
However, we conclude that because O'Neill and its employees did not perform cleaning services for defendant or perform any other activity enumerated under Labor Law § 240 Lab. (1), and because plaintiff's incidental cleaning of his employer's truck was not necessary or incidental to any activity enumerated under the statute, plaintiff does not qualify for the protection of this statute (see, Covey v. Iroquois Gas Transmission Sys., 218 A.D.2d 197, 198-199, affd 89 N.Y.2d 952; see also, Demeza v. American Tel. Tel. Co., supra, at 744; Vilardi v. Berley, 201 A.D.2d 641, 643, lv denied 83 N.Y.2d 760; Meehan v. Mobil Oil Corp., 184 A.D.2d 1021, 1022,lv denied 85 N.Y.2d 804; cf., Chapman v. International Bus. Mach. Corp., 253 A.D.2d 123 [the plaintiff was performing janitor services for cleaning service]; Vernum v. Zilka, 241 A.D.2d 885; Cabri v. ICOS Corp. of Am., 240 A.D.2d 456, 457). While, as Supreme Court correctly observed, commercial cleaning is an enumerated activity under Labor Law § 240 Lab. (1) and need not be incidental to any other enumerated activity to be protected (see, Chapman v. International Bus. Mach. Corp., supra, at 125-127), the determinative focus of Labor Law § 240 Lab. (1) is on the work plaintiff was performing when he was injured (see, Joblon v. Solow, 91 N.Y.2d 456, 465).
O'Neill, plaintiff's employer, delivered lumber to defendant's paper mill for sale pursuant to their noncontractual ongoing business relationship. Pursuant to that relationship, O'Neill did not perform cleaning services for defendant and defendant did not retain O'Neill to perform cleaning or pay extra for plaintiff's cleaning of O'Neill's truck. Plaintiff's incidental, minimal cleaning of his employer's truck following the delivery, sawing and unloading of the lumber did not make him "a person so employed" (Labor Law § 240 Lab. [1]) in the protected activity of "cleaning" the truck (see, Jobon v. Solow, supra, at 465). Neither was plaintiff's ridding of the debris necessary or incidental to any other activity protected by Labor Law § 240 Lab. (1) (see generally, La Fontaine v. Albany Mgt., 257 A.D.2d 319, 691 N.Y.S.2d 640; see also, Demeza v. American Tel. Tel. Co., supra, at 744; Vilardi v. Berley, supra; Meehan v. Mobil Oil Corp., supra;cf., Curley v. Gateway Commununications, supra; Covey v. Iroquois Gas Transmission Sys., supra). Accordingly, defendant is entitled to summary judgment dismissing this claim.
Cardona, P.J., Mercure, Carpinello and Graffeo, JJ., concur.
ORDERED that the order is modified, on the law, with costs to defendant, by reversing so much thereof as granted plaintiffs' cross motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 Lab. (1) and partially denied defendant's motion for summary judgment dismissing the complaint; plaintiffs' cross motion denied, defendant's motion granted in its entirety and complaint dismissed; and, as so modified, affirmed.