LaFontainev.Albany Management, Inc.

Appellate Division of the Supreme Court of New York, Third DepartmentJun 10, 1999
257 A.D.2d 319 (N.Y. App. Div. 1999)
257 A.D.2d 319691 N.Y.S.2d 640

June 10, 1999.

APPEAL from an order of the Supreme Court (Robert E. Lynch, J.), entered October 23, 1998 in Schenectady County, which granted a motion by defendants for summary judgment dismissing the complaint.

Charles R. Harding, Glenville, for appellants.

Friedman, Hirschen, Miller, Coughlin Campito, Schenectady ( Michael C. Rizzo of counsel), for respondents.


OPINION OF THE COURT


SPAIN, J.

Labor Law § 240 Lab. (1) imposes a nondelegable duty on owners and contractors and their agents to furnish, or cause to be furnished, suitable safety devices to give proper protection to workers engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 Lab. [1]) and, regardless of whether the owners or contractors actually exercise supervision or control over the work, they may be held absolutely liable in damages for any breach of that duty which proximately caused injury to a worker so engaged ( see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559-560; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 499-501; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513; Haimes v. New York Tel. Co., 46 N.Y.2d 132, 136-137). The novel issue presented on this appeal is whether the protective shield of this statute is applicable to a worker who fell from a stepladder while engaged in removing and replacing wallpaper in a vacant apartment, an issue which takes this Court once again into uncharted waters regarding the scope of Labor Law § 240 Lab. (1). Because the wallpapering, by itself, was neither an activity specifically listed in Labor Law § 240 Lab. (1) nor incidental and necessary to any of the enumerated activities, we conclude that it was not covered by this statute.

Plaintiff Catherine La Fontaine (hereinafter plaintiff), a self-employed wallpaper hanger, was hired by defendant Albany Management, Inc., a property management company, to remove and replace wallpaper in several rooms of a single, recently vacated apartment in an apartment complex located in the Town of Guilderland, Albany County. The apartment complex was owned by defendant American Heritage Realty Partnership. On August 28, 1995, while plaintiff was removing a piece of wallpaper from the bathroom wall of the vacant apartment, the three-step stepladder on which she was standing allegedly slid, causing her to fall and sustain multiple injuries. Thereafter, plaintiff and her husband, derivatively, commenced actions, later consolidated, against defendants alleging that they failed to erect or furnish a proper safety device in violation of Labor Law § 240 Lab. (1). Supreme Court granted defendants' motion for summary judgment, essentially concluding that wallpapering portions of one apartment was not within the ambit of Labor Law § 240 Lab. (1).

We affirm. We begin with the threshold proposition that the special statutory protection embodied in Labor Law § 240 Lab. (1) against the dangers of elevation-related hazards in the workplace only applies to workers who, at the time of the accident, are engaged in one of the statute's enumerated activities or engaged in work sufficiently necessary and incidental to one of the enumerated activities ( see, Joblon v. Solow, 91 N.Y.2d 457, 465; Lombardi v. Stout, 80 N.Y.2d 290, 295-296; Curley v. Gateway Communications, 250 A.D.2d 888; Perchinsky v. State of New York, 232 A.D.2d 34, 38, lv dismissed and denied 91 N.Y.2d 830). The inquiry focuses on the "type of work the plaintiff was performing at the time of injury" ( Joblon v. Solow, supra, at 465). The activities or lines of employment which the Legislature has expressly chosen to protect by this provision, some, of which have been added over the last century, are "the erection, demolition, repairing, altering, painting, cleaning or pointing" of a building or structure (Labor Law § 240 Lab. [1]). Notably, wallpapering is not, and never has been explicitly among the enumerated protected activities, although plaintiffs argue that it should be subsumed under either "painting" or "altering". It is uncontroverted that, at the time of plaintiff's injury, there was no construction or other activity enumerated in Labor Law § 240 Lab. (1) underway at the apartment building, and that the wallpapering was not performed incidental to any other enumerated activity. Importantly, in construing this statute, we endeavor — as we should — to ascertain its "fair and reasonable meaning" and to avoid "a construction which either extends or limits its provisions beyond that which was evidently intended" ( Schapp v. Bloomer, 181 N.Y. 125, 128; see, Antes v. Watkins, 112 App. Div. 860, 864).

The Court of Appeals has recently pronounced that altering, as contemplated by Labor Law § 240 Lab. (1), "requires making a significant physical change to the configuration or composition of the building or structure * * * [and] excludes simple, routine activities" ( Joblon v. Solow, 91 N.Y.2d 457, 465, supra [emphasis in original]; accord, Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960). In adopting this exacting interpretation, the Court rejected a broader meaning of altering that would allow all changes in structures to qualify as alterations, thereby rendering superfluous the statute's specifically enumerated activities ( see, Joblon v. Solow, supra, at 464-465 [rejecting interpretation of altering articulated in Cox v. International Paper Co. ( 234 A.D.2d 757)]). Applying this rule to the facts herein presented, we are unable to conclude that removing and replacing wallpaper constitutes a significant physical change to the apartment's or to the apartment building's configuration or composition so as to fall within the statutory term altering ( cf., Joblon v. Solow, supra, at 465-466 [installing electric power supply]; Weininger v. Hagedorn Co., supra, at 960 [installing computer and telephone cables]).

Research reveals but one reported precedent at the trial level in which wallpapering was held to be a covered activity under Labor Law § 240 Lab. (1), i.e., altering ( see, Katz v. Press Mgt. Corp., 117 Misc.2d 870). That decision is materially distinguishable from this case in that the wallpapering therein was an integral part of a larger building construction project and, in any event, the case was decided without the guidance provided by Joblon v. Solow (supra). In our view, the paperhanging activity in which plaintiff was engaged is the type of cosmetic maintenance or decorative modification that is routinely provided to a vacant apartment between tenancies which does not effect a "significant physical change" to the composition or configuration of the apartment and does not qualify as altering under this statute ( Joblon v. Solow, supra, at 465).

Further, while plaintiff's replacement of deteriorating or unsightly wallpaper may, in common terms, be viewed as a repair project, we cannot conclude that it constitutes repairing as contemplated by Labor Law § 240 Lab. (1) and the decisional law interpreting the parameters of that statutory term. It cannot be said that the existing wallpaper or walls behind it were broken, inoperable or not functioning properly; therefore, plaintiff was not engaged in repairing under Labor Law § 240 Lab. (1) ( see, Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002; Izrailev v. Ficara Furniture, 70 N.Y.2d 813, 815; Carr v. Perl Assocs., 201 A.D.2d 296, 297; see also, Leubner v. McNeil, ___ A.D.2d ___, 1999 N.Y. Slip Op 04627 [3d Dept, May 13, 1999]; Craft v. Clark Trading Corp., 257 A.D.2d 886, 887; Crossett v. Schofell, 256 A.D.2d 881; Vernum v. Zilka, 241 A.D.2d 885; Shapiro v. ACG Equity Assocs., 233 A.D.2d 857; Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592). Were we to conclude that every such modification to, or improvement of, a wall surface constitutes a repair we would "render superfluous such statutory terms as `painting' and `pointing'" ( Joblon v. Solow, supra, at 464-465), and our holding would be "`"tantamount to a ruling that all work related falls off ladders fall within * * * Section 240 Lab."'" ( id., at 464, quoting Giambalvo v. National R. R. Passenger Corp., 850 F. Supp. 166, 170). Thus, plaintiff was not engaged in repairing work within the meaning of Labor Law § 240 Lab. (1).

Likewise, while the term cleaning has been given an expansive interpretation, every ridding of extraneous material will certainly not qualify as cleaning under Labor Law § 240 Lab. (1) ( see, Vernum v. Zilka, supra, at 886) and, indeed, we conclude that the removal and replacement of wallpaper, by itself, may not be deemed cleaning under Labor Law § 240 Lab. (1).

Plaintiffs' other contention is that hanging wallpaper is sufficiently indistinguishable from the enumerated activity of painting and therefore should be subsumed under that activity. Notably, painting has explicitly received special statutory protection as an elevation-related hazard for over a century ( see, Schapp v. Bloomer, 181 N.Y. 125, 128, supra; Wingert v. Krakauer, 76 App. Div. 34, 40). Significantly, when the Legislature has seen fit, it has expressly added a new line of employment or category of protected work activity, as it did in 1930 when it added demolition to the list of protected activities ( see, L. 1930, ch. 603, § 3; see also, Connors v. Boorstein, 4 N.Y.2d 172, 174), and in 1969, when it expanded liability to all contractors and owners and their agents ( see, L. 1969, ch. 1108, § 1; see also, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520; Rocha v. State of New York, 45 A.D.2d 633, 635, lv denied 36 N.Y.2d 642). Likewise, the Legislature has restricted the scope of Labor Law § 240 Lab. (1) — in recognition of the potentially harsh results of absolute liability — when it created an exception for owners of one- and two-family dwellings ( see, L. 1980, ch. 670, § 1; see also, Lombardi v. Stout, 80 N.Y.2d 290, 296, supra; Van Amerogen v. Donnini, 78 N.Y.2d 880, 881-882). In our view, the Legislature has never made the policy determination to include wallpapering — wallpaper removal or hanging — among the enumerated activities to be absolutely protected. The suggested addition of a covered activity cannot be achieved under the guise of statutory construction.

In holding that wallpapering, by itself, is not an activity covered under Labor Law § 240 Lab. (1), we are mindful that the purpose of this statute is to protect workers and to impose safety practices on those best situated to bear that responsibility, i.e., on owners and contractors and their agents, instead of on workers who are generally not in a position to protect themselves ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, supra; Zimmer v. Chemung County Performing Arts, supra, at 520; Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 318). We are also aware that Labor Law § 240 Lab. (1) was aimed at elevation-related or gravity-related hazards ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 500-501; see also, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, supra; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, supra); however, all work-related falls from elevated surfaces or safety devices do not fall within the ambit of Labor Law § 240 Lab. (1) ( see, Joblon v. Solow, 91 N.Y.2d 457, 464, supra). The often repeated precept that Labor Law § 240 Lab. (1) is to be liberally construed is qualified by the requirement that the statutory construction "`be for the accomplishment of the purpose for which it was * * * framed'" ( Koenig v. Patrick Constr. Corp., supra, at 319, quoting Quigley v. Thatcher, 207 N.Y. 66, 68; see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 500). While wallpapering apparently poses many of the same elevation-related hazards as painting or other activities enumerated in Labor Law § 240 Lab. (1), and, arguably, is no more a "decorative modification" than painting ( Joblon v. Solow, supra, at 465) and perhaps is not maintenance "of a sort different from `painting, cleaning or pointing'" ( Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002, supra [emphasis supplied]; see, Vernum v. Zilka, 241 A.D.2d 885, 886, supra), it is distinguishable in that it was never included among the activities which the Legislature has specifically elected to absolutely protect under Labor Law § 240 Lab. (1).

We leave for another day the issue of whether wallpapering incidental to activities listed in Labor Law § 240 Lab. (1) is covered, and under what circumstances.

Thus, at least when it is not performed incidentally to or as a necessary and integral part of an enumerated activity, we are unable to conclude, under any rubric of statutory interpretation, that the risks associated with wallpapering were among the purposes for which this provision was framed ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra; Koenig v. Patrick Constr. Corp., supra; Quigley v. Thatcher, supra; see also, Martinez v. City of New York, 252 A.D.2d 545; Lundquist v. Ditmas Realty Co., 230 A.D.2d 830; Karaktin v. Gordon Hillside Corp., 143 A.D.2d 637). Simply stated, workers who perform wallpapering are not in an occupation for whose special benefit Labor Law § 240 Lab. (1) was designed to protect.

Furthermore, we believe that this interpretation comports with the precept that, because Labor Law § 240 Lab. (1) imposes absolute liability without regard to a worker's culpability, its language "should not be strained to encompass accidents which the Legislature did not intend to include" ( Perchinsky v. State of New York, 232 A.D.2d 34, 37-38, supra, citing Allen v. Hodorowski DeSantis Bldg. Contrs., 220 A.D.2d 959, 960; see also, Martinez v. City of New York, supra; Karaktin v. Gordon Hillside Corp., supra, at 638; Manente v. Ropost, Inc., 136 A.D.2d 681, 682; Chabot v. Baer, 82 A.D.2d 928, 929, aff'd 55 N.Y.2d 844). Thus, while removing and replacing wallpaper is probably not "far removed from the risks associated with the construction, renovation, [painting,] demolition or alteration of a building" ( Perchinsky v. State of New York, supra, at 38), and is arguably not "maintenance of a sort different from * * * the * * * types of maintenance provided for in the statute", e.g., painting, cleaning or pointing ( Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002, supra), it was not accorded the protection under Labor Law § 240 Lab. (1) which was conferred on these enumerated activities.

As a result, wallpapering in this context must be deemed a form of maintenance or decorative modification which falls outside the scope of Labor Law § 240 Lab. (1). While the numerous policy contentions for inclusion of wallpaper under this statute's protective umbrella are perhaps arguable, in our view they are better addressed to the Legislature and not the courts ( see, Joblon v. Solow, 91 N.Y.2d 457, 465, n 2, supra). Consequently, Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.

CARDONA, P. J., MERCURE, CARPINELLO and GRAFFEO, JJ., concur.

Ordered that the order is affirmed, without costs.