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RAMOS v. MARKSUE REALTY CORP.

April 26, 1984

ANDRES RAMOS and LISA McADAMS, Plaintiffs, against MARKSUE REALTY CORPORATION, MILTROSE REALTY CORPORATION, and DAVID KUPERBERG, Defendants.


The opinion of the court was delivered by: SAND

LEONARD B. SAND, U.S.D.J.

SAND, J.

 This is a personal injury action based upon diversity jurisdiction under 28 U.S.C. § 1332. Plaintiffs are domicilliaries of the State of New Jersey and defendants Marksue Realty Corporation ("Marksue") and Miltrose Realty Corporation ("Miltrose") are domestic corporations organized under the laws of the State of New York. Defendant David Kuperberg is a domicilliary of the State of New York as well.

 It is undisputed that on October 1, 1983, plaintiff Ramos, while washing windows in the stairway of a five story apartment building in Manhattan, slipped and fell off the third floor ledge. Plaintiff now seeks damages for the injuries he suffered. He has sued Marksue and Miltrose as corporate owners of the building in question and Kuperberg in his capacity as both co-owner and manager of that building.

 In his first count, Ramos alleges that defendants have viiolated Section 240 of the Labor Law of the State of New York and seeks $1,500,000 damages plus costs for the injuries he claims to have suffered because of the alleged viiolation. In his second count, Ramos seeks $1,500,000 as a result of the alleged negligence, carelessness and recklessness of defendant, resulting in the accident. As a third count, plaintiff Lisa McAdams sues for $500,000 damages plus costs for the loss of services, companionship, and consortium of her husband Ramos, allegedly caused by the conduct of the defendants. Defendants have moved for partial suummary judgment dismissing plaintiff's first cause of action. For the reasons that follow, we deny this motion.

 DISCUSSION

 The parties disagree as to which section of the New York Labor Law is controlling. Plaintiffs urge that Section 240, entitled "Scaffolding and other devices for use of employees" is the applicable statute. Defendants, on the other hand, contend that Section 202, entitled, "Protection of the public and of persons engaged at window cleaning and cleaning of interor surfaces of buildings" is controlling.

 As a federal court sitting in diversity, we must, of course, construe the New York Law in a manner consonant with New York State court interpretations of the statute. Section 240 of the Labor Law, aimed at protecting workmen engaged in dangerous employment, has consistently received a liberal construction by the New York courts. These liberal interpretations, coupled with recent state legislative amendments to Section 240 designed to broaden the scope of the statute, lead us to conclude that plaintiff Ramos is protected by Section 240.

 Section 240 provides, in pertinent part:

 § 240. Scaffolding and other devises for use of employees.

 1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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. . . .

 N.Y.Lab.Law § 240 (McKinney 1965 & Supp. 1984). Other subdivisions of Section 240 give requirements for ladders, scaffolds and other devices provided for employees' use.

 New York courts have long imposed absolute liability for violations of Section 240. See, e.g., Pereira v. A.D. Herman Construction Co., 74 A.D.2d 531, 425 N.Y.S.2d 308 (1st Dept. 1980); Long v. Murnane Associates, 68 A.D.2d 166, 416 N.Y.S.2d 413 (3d Dept. 1979); Tully v. Roosevelt Properties, Inc., 34 A.D.2d 786, 787, 311 N.Y.S.2d 41, 43 (2d Dept. 1970).

 First, we note that "cleaning . . . of a building or structure" is encompassed by the plain terms of the statute. Although the type of periodic window cleaning in which plaintiff Ramos was engaged is not an activity specifically enumerated in Section 240, this does not prevent its inclusion by implication. In point is Katz v. Press Management Corp., 117 Misc.2d 870, 459 N.Y.S.2d 383 (Sup.Ct. 1983), where the Court determined in a question of first ...


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