With respect to whether plaintiff's work on the Concord's engine was an activity covered by the statute, both sides agree that plaintiff was engaged in repairing the Concord's engine. Defendant argues however that the kind of repair plaintiff was performing -- replacing a hydraulic filter -- was not the kind of repair envisioned by the statute. Pointing to the ejusdem generis doctrine, defendant argues that the word "repair" should be construed as related to construction, demolition or renovation, and not to include routine maintenance. See Gaimbavlo v. National Railroad Passenger Corp. (E.D.N.Y. 1994) 850 F. Supp. 166; Manente v. Ropost, Inc. (2d Dept. 1988) 136 A.D.2d 681, 524 N.Y.S.2d 96 (in both cases, plaintiff injured while changing a light bulb; statute did not apply); Cosentino v. Long Island Railroad (2d Dept. 1994) 201 A.D.2d 528, 607 N.Y.S.2d 720 (statute did not apply to telephone company worker injured while splicing cables in subway station); Edwards v. Twenty-Four Twenty-Six Main Street Assocs. (A.D. 2d Dept. 1993) 195 A.D.2d 592, 601 N.Y.S.2d 11 (citing Manente as authority not to apply statute to plaintiff who fell six feet while repairing shelves).
While in the body of the statute, the word "repair" is strung together with "erection, demolition" and "altering" -- giving support to defendant's argument -- it is also strung together with "painting, cleaning or pointing." Thus even under the ejusdem generis doctrine, the work plaintiff was engaged in could be interpreted as a "repair" under the statute. See Ferrari v. Niasher Realty, Inc. (4th Dept. 1991) 175 A.D.2d 591, 573 N.Y.S.2d 794 (a worker removing storm windows from a building was engaged in activity protected under the statute).
Moreover, the title of the statute, "Building Construction, Demolition and Repair Work," very clearly suggests a design independently to cover these three separate categories of activity. Indeed, the statute has frequently been applied to situations involving neither construction nor demolition, but involving workers who have fallen from a height while engaged in activities requiring the use of ladders or scaffolds. See Terry v. Young Men's Hebrew Association of Washington Heights (1st Dept. 1990) 168 A.D.2d 399, 563 N.Y.S.2d 408; Ramos v. Marksue (S.D.N.Y. 1984) 586 F. Supp. 488 (both involving window washing); Carr v. Jacob Perl Associates (1st Dept. 1994) 201 A.D.2d 296, 607 N.Y.S.2d 301 (elevator repair); Walsh v. Applied Digital Data Systems, Inc. (2d Dept. 1993) 190 A.D.2d 731, 594 N.Y.S.2d 626 (removal of computer cable from building). Because in this case elevated heights were involved, the cases applying the statute to non-construction, non-renovation repairs are persuasive.
We therefore find that the statute applies, and grant plaintiffs' motion for partial summary judgment.
New York, New York
February 13, 1995
WHITMAN KNAPP, SENIOR U.S.D.J.