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Martinez v. City of New York

Court of Appeals of the State of New York
May 13, 1999
93 N.Y.2d 322 (N.Y. 1999)

Summary

holding that asbestos inspector's work was “investigatory” in nature and not related to the later phase of construction and, therefore, not within the ambit of section 240

Summary of this case from In re World Trade Ctr. Lower Manhattan Disaster Site Litig.

Opinion

Argued and submitted March 20, 1999

Decided May 13, 1999

Andrew M. Engel, for appellants.

Susan Choi-Hausman, for City respondents.

Submitted by E. Kevin Agoglia, for third-party respondent.


Plaintiff was injured when he fell from a height while performing asbestos inspection work in a school building owned by defendant City of New York and operated by the New York City Board of Education. We must decide whether the work in which plaintiff was engaged when he was injured fell within the ambit of Labor Law § 240(1). We hold that it did not.

Plaintiff Walfredo Martinez was hired in August 1993 as an "environmental inspector" by third-party defendant L.J. Gonzer Associates, a placement agency, and was assigned to work for defendant/third-party plaintiff Kaselaan D'Angelo Associates. Kaselaan had contracted with the New York City School Construction Authority to provide asbestos inspection services during phase one of "Operation Clean House," a two-phase project to identify and remove asbestos from New York City public schools. Phase one, the "Project Design" phase, entailed the inspection of school buildings and the identification of asbestos problem areas; the actual cleaning and removal work would be performed only during phase two, the "Abatement Phase." Thus, Kaselaan's sole role during phase one was to locate, identify and catalog asbestos in the school buildings and mark it for removal.

Plaintiff's duties were to determine whether asbestos samples had been previously taken, check areas marked as containing asbestos and measure areas where asbestos was found. On September 17, 1993, plaintiff was sent to visually inspect and take measurements at P.S. 85, in Queens. At the time of the accident, plaintiff was attempting to measure an insulation-covered pipe which ran from the ceiling to the top of a large closet approximately eight or nine feet tall. In an effort to reach the pipe, plaintiff and another inspector moved a desk against the closet. Plaintiff then climbed onto the desk and grasped the top of the closet in an attempt to lift himself higher. While doing so, he fell and was injured.

Plaintiff and his wife then commenced this action asserting causes of action including common-law negligence and violation of Labor Law § 240(1). As pertinent here, plaintiff moved for partial summary judgment, on the issue of liability under Labor Law § 240(1), alleging that defendants failed to provide him with a safety device, such as a ladder, on the day of the accident. The municipal defendants cross-moved for dismissal of the complaint for failure to state a cause of action or summary judgment.

Supreme Court denied plaintiff's motion for summary judgment and granted defendants' cross-motions. With respect to the municipal defendants, the court held that the inspection work performed by plaintiff, even though entailing some height-related risk, was not the kind of elevation-related work contemplated by Labor Law § 240(1). By a divided vote, the Appellate Division affirmed. The majority noted that plaintiff's job was limited to inspection for asbestos in preparation for subsequent asbestos removal, which, if required, would be performed by an entity other than Kaselaan or Gonzer. The majority thus reasoned that plaintiff's inspection work was "clearly not integral to the job of removing asbestos," and so was not within the purview of Labor Law § 240(1). The dissenting Justices contended that plaintiff's inspection work was "an integral and necessary part of a project that was within the purview of" Labor law § 240(1). This appeal comes before us as of right based on the two-Judge dissent (CPLR 5601[a]), and we now affirm.

Section 240(1) of the Labor Law requires all contractors and property owners and their agents:

"in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [to] furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The statute is thus designed to minimize injuries to employees by placing ultimate responsibility for safety practices on owners and contractors, rather than on the workers, who as a practical matter lack the means of protecting themselves from accidents (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520). Hence, we have repeatedly indicated that section 240(1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed" (Quigley v. Thatcher, 207 N.Y. 66, 68; see also, e.g., Joblon v. Solow, 91 N.Y.2d 457, 463; Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 559; Lombardi v. Stout, 80 N.Y.2d 290, 296; Zimmer v. Chemung County Performing Arts, supra, 65 N.Y.2d, at 520-521). As the majority below pointed out, however, "'the statutory language must not be strained in order to encompass what the Legislature did not intend to include'" ( 252 A.D.2d 546, quoting Karatkin v. Gordon Hillside Corp., 143 A.D.2d 637, 638).

While the reach of section 240(1) is not limited to work performed on actual construction sites (see, Joblon v. Solow,supra, 91 N.Y.2d, at 464), the task in which an injured employee was engaged must have been performed during "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Here, plaintiff's work as an environmental inspector during phase one was merely investigatory, and was to terminate prior to the actual commencement of any subsequent asbestos removal work. In fact, none of the activities enumerated in the statute was underway, and any future repair work would not even be conducted by Kaselaan, plaintiff's supervisor, but by some other entity. Thus, plaintiff was "not a person 'employed' to carry out the repairs as that term is used" in section 240(1) (see, Gibson v. Worthington Div. of McGraw Edison Co., 78 N.Y.2d 1108).

In concluding that plaintiff's job did not entitle him to protection under the statute, we reject the analysis employed below which focused on whether plaintiff's work was an "integral and necessary part" of a larger project within the purview of section 240(1). Such a test improperly enlarges the reach of the statute beyond its clear terms.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Wesley concur. Judge Rosenblatt took no part.


Summaries of

Martinez v. City of New York

Court of Appeals of the State of New York
May 13, 1999
93 N.Y.2d 322 (N.Y. 1999)

holding that asbestos inspector's work was “investigatory” in nature and not related to the later phase of construction and, therefore, not within the ambit of section 240

Summary of this case from In re World Trade Ctr. Lower Manhattan Disaster Site Litig.

In Martinez v. City of New York, 93 N.Y.2d 322, 712 N.E.2d 689, 690 N.Y.S.2d 524 (1999), the Court of Appeals held that an environmental inspector who fell while performing asbestos inspections was not protected by § 240(1).

Summary of this case from Prats v. Port Authority of N.Y. and New Jersey

In Martinez v. City of New York, 93 N.Y.2d 322, 326 (1999), the Court of Appeals articulated and rejected one potential standard: whether a plaintiff's work is "integral and necessary" to a larger project that is within the purview of section 240(1).

Summary of this case from Lassig v. Woodward

In Martinez v. City of New York (93 NY2d 322), we held that an injury that occurred during inspection and before an enumerated activity began was not within the purview of section 240 (1).

Summary of this case from Beehner v. Eckerd Corporation

In Martinez v. City of New York (93 NY2d 322), we held that an injury that occurred during inspection and before an enumerated activity began was not within the purview of § 240 (1).

Summary of this case from Beehner v. Eckerd Corp.

In Martinez, we concluded that section 240(1) afforded no protection to a plaintiff injured before any activity listed in the statute was underway (see 93 N.Y.2d at 326).

Summary of this case from Panek v. County of Albany

In Martinez, the court found it decisive that the plaintiff was not employed by a company that did, or would ever do, the asbestos removal project.

Summary of this case from Adair v. Bestek Lighting Staging Corp.

In Martinez, the plaintiff was an environmental inspector who was injured during the first phase of a two-phase project to inspect school buildings for asbestos problem areas.

Summary of this case from Adair v. Bestek Lighting Staging Corp.

In Martinez, a case upon which the defendants rely, an inspector was injured while he was checking for asbestos in schools.

Summary of this case from Gallagher v. Resnick

In Martinez, a case upon which the defendants rely, an inspector was injured while he was checking for asbestos in schools.

Summary of this case from Gallagher v. Resnick

In Martinez, plaintiff's work as an environmental inspector was to terminate prior to the actual commencement of any subsequent asbestos removal work.

Summary of this case from MATZ v. LABORATORY INST. OF MERCHANDISING

In Martinez, the plaintiff was injured while performing an inspection during a separate, investigatory phase before the construction work, that was to be performed by others, commenced.

Summary of this case from Bissell v. Town of Amherst

In Martinez, the Court of Appeals affirmed the dismissal of the Labor Law § 240 (1) claim asserted by plaintiff, an environmental inspector who fell from a height during the course of an inspection before the commencement of an asbestos abatement program at the subject location.

Summary of this case from McDonald v. Colonial Steel Corp.
Case details for

Martinez v. City of New York

Case Details

Full title:WALFREDO MARTINEZ et al., Appellants, v. CITY OF NEW YORK, et al.…

Court:Court of Appeals of the State of New York

Date published: May 13, 1999

Citations

93 N.Y.2d 322 (N.Y. 1999)
690 N.Y.S.2d 524
712 N.E.2d 689

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