Plaintiffs Richard Joblon ("Joblon") and Magdalena Joblon (collectively, "the Joblons") have moved for partial summary judgment under Rule 56, Fed. R. Civ. P., declaring that Section 240(1) of the Labor Law of the State of New York (McKinney 1986) ("Section 240(1)") applies to the Joblons' claim for damages arising out an injury suffered by Joblon while working as an electrician on property owned by defendant Sheldon H. Solow ("Solow") and leased by defendant Avon Products, Inc. ("Avon"). Solow has moved, under the same rule, for summary judgment for indemnification against co-defendant Avon and against third-party defendant Geller Electric Construction and Maintenance, Inc. ("Geller"), the employer of Joblon. Avon has moved for summary judgment declaring a right to indemnification by Geller. Geller has moved for summary judgment that Section 240(1) does not apply and that Joblon, Wayne Gordon ("Gordon"), and George Schwab ("Schwab") were special employees of Avon.
For the reasons set forth below, the Joblons' motion will be denied. Geller's motion for summary judgment that Section 240(1) does not apply to the facts of this case will be granted. Geller's motion for summary judgment that Joblon, Schwab, and Gordon were special employees of Avon will be denied. Solow's motions for summary judgment will be granted as to Avon and denied as to Geller. Avon's motion for summary judgment will be denied.
The complaint of the Joblons against Solow and Avon was filed on February 1, 1994, alleging diversity jurisdiction and a claim for personal injuries suffered when Joblon fell from a step-ladder while working on Solow's property. Solow filed his third-party complaint against Geller on June 2, 1994, and on August 8, 1994, Avon filed its cross-claim against Geller. Discovery proceeded, and the instant motions were heard and submitted on November 29, 1995.
Joblon is an electrician employed by Geller, which in turn had been hired by Avon to provide ongoing services as house electrician at the building at 9 West 57th Street, New York City. That building is owned by Solow, and Avon a tenant under a lease containing a clause which indemnified Solow for certain acts committed by Avon.
On January 30, 1992, Joblon had been working in the Avon space as an electrician for ten days. On that date, in accordance with the routine for job assignments, he was directed by Gordon, the foreman from Geller, to install an electric wall clock in the Avon mail room on the twentieth floor as had been requested by the Avon facilities supervisor. Together with Schwab, his co-worker, Joblon obtained the equipment necessary to perform this assignment from a storeroom under the control of Geller, including a six- or eight-foot wooden A-frame ladder (the "Ladder"). Joblon proceeded to a small room adjacent to the mail room in order to run an electrical line from an outlet in that room through the wall to provide electrical power for the clock which was to be installed on the mail room wall.
The size of the room in which Joblon and Schwab started their work precluded them from fully opening the Ladder so that it could support itself in the normal fashion. The Ladder was partially opened and leaned against the wall with the back legs about 30 inches from the wall. During the morning each of the two men took turns working on the Ladder positioned in this manner while the other secured the base of the Ladder by holding onto it while on the ground, as they chiselled the passage through the wall to accommodate the electrical line.
Shortly before one o'clock, Schwab went to the mail room on the other side of the wall. Joblon retrieved additional materials and started up the Ladder when it shifted. He lost his balance and fell backwards while throwing out his arms to break his fall. In so doing, he suffered injuries which subsequently required two surgical procedures and extensive medical care. He has alleged a permanent, partial disability and no longer works.
These facts are established by the submissions of the parties and are not in dispute.
I. Standard for Summary Judgment
The instant motion is brought pursuant to Rule 56. The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Federal Rule of Civil Procedure 1: namely, "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327. A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).
II. Section 240 Does Not Apply to These Facts
Section 240 has given rise to more than its fair share of litigation and amendment going back to its origins in 1885. It provides, in pertinent part, that:
All contractors and owners and their agents, . . . in the erection, demolition, repairing, altering, painting, cleaning, or pointing or a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, . . . ladders . . . which shall be so constructed, placed and operated as to give proper protection to a person so employed.
This Court's most recent brush with the section came in Violette v. Armonk, 823 F. Supp. 224 (S.D.N.Y. 1993), see also Violette v. Armonk, 808 F. Supp. 1060 (S.D.N.Y. 1992), where the issue was whether or not construction was involved -- an issue determined in favor of the plaintiff. Id. Here the issue turns on whether the activity involved is "repairing, altering" or maintenance. The parties have cited equally persuasive authorities for each categorization. Rather than engage in an ipse dixit determination, it is appropriate to reflect on the underlying purpose of the statute to reach the determination that Joblon's fall from the ladder is not covered.
Initially, of course, it is said and often repeated that the section, being remedial, should be liberally construed. The Court of Appeals noted recently that Section 240(1) is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed. See Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993); Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117 (1992); Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991). By liberally interpreting the statutory terms "alteration" and "repair", the courts have expanded them to include situations wherein basic maintenance-type work was performed to a building even though no construction, demolition or renovation work occurred.
Such a construction would appear to mandate that every fall from a ladder would be covered by the section, but such a construction would render the qualifying language meaningless. Indeed, it seems generally accepted that maintenance is not covered by the section. In Cosentino v. Long Island R.R., 201 A.D.2d 528, 607 N.Y.S.2d 720 (2d Dep't 1994), a telephone company repairman was injured while splicing cables at a subway station. The trial court granted the worker's motion for summary judgment pursuant to Section 240(1). The Appellate Division reversed, stating:
It is clear that liability under Labor Law Section 240(1) was not meant to apply to routine maintenance in a nonconstruction context. In view of the strict liability imposed by the statute and the fact that such liability is generally imposed only to guard against inordinate dangers, we find no reason to strain the language of the statute to encompass the routine activities involved with telephone service, which is clearly distinguishable from the risks associated with the construction or demolition of a building.
Id. In Edwards v. Twenty-Four Twenty Six Main Street Associates, 195 A.D.2d 592, 601 N.Y.S.2d 11 (2d Dep't, 1993), plaintiff fell from a height while repairing dilapidated plywood shelves. The Appellate Division affirmed summary judgment to the building owner, holding that "Labor Law Section 240(1) was not meant to apply to routine maintenance in a non-construction, non-renovation context." Id.
On the other hand, Joblon has cited Golda v. Hutchinson Enterprises, Inc., 632 N.Y.S.2d 364 (4th Dep't 1995) which states:
Supreme Court properly granted plaintiffs' cross motion for partial summary judgment on liability under Labor Law § 240(1). James Golda (plaintiff) was installing a gas meter when he was injured; that activity constitutes an "alteration" of the premises within the meaning of the statute (see Atwell v. Mountain Ltd., 184 A.D.2d 1065, 584 N.Y.S.2d 255; Dedario v. New York Tel. Co., 162 A.D.2d 1001, 1003, 557 N.Y.S.2d 794). Although there is no proof that the ladder plaintiff was using was defective, he fell while working at an elevated work site as a result of the absence of adequate safety devices, and thus was entitled to partial summary judgment on liability under the statute (see Ellis v. Hammond & Irving, A.D.2d , 629 N.Y.S.2d 889).