Sherwin Rear, New York City, for defendants and third-party plaintiffs. Martin A. Cohen, New York City, for Paragon Cable Manhattan, Inc., third-party defendant. Raymond Carey, Woodbury, for plaintiffs.
Paul A. Victor, J.
Defendants and third-party plaintiffs Lancaster Studio Associates, Dennis Wright, Benjamin Hadar, and Ruth Shomron (hereinafter, collectively, Lancaster) move for summary judgment dismissing the plaintiffs' complaint as well as the counterclaims interposed by third-party defendants ParagonCable Manhattan, Inc. and Time Warner Cable of New York City, Inc. (hereinafter, collectively, third-party defendant or Paragon), or in the alternative for judgment against the third-party defendants for indemnification. The third-party defendants move by separate motion for dismissal of plaintiffs' complaint. The motions are consolidated for disposition and decided as follows:
Background and Procedural History
On August 12, 1995, plaintiff Anthony Abbatiello, a technician then employed by third-party defendant Paragon, was dispatched by Paragon to a building owned by the defendant Lancaster, located at 936 West End Avenue, in order to investigate a complaint by a residential tenant (who is not otherwise identified) concerning inadequate cable television reception. No prior notice was given to Lancaster or its agents or employees. After unsuccessfully attempting to obtain access to the building or to contact building employees, plaintiff, who had serviced the same building on prior occasions, decided to examine the cable box which was attached to the exterior of the building. In order to gain access to the cable box, he removed from his van a 20-foot extension ladder, which had been supplied to him by Paragon, which he then extended and placed against the side of the building. After connecting an RF meter to the wires inside the junction box, plaintiff determined that the defective signal was caused by " water in the tap" (i.e., water seepage into the junction box).
Plaintiff testified at his examination before trial that " the last thing [he] did prior to the ladder falling was read the meter" and that " [he] was supposed to repair it but [he] fell." (Emphasis added.) According to plaintiff's attorney, the condition of the junction box required that the old box be removed and a new box installed. In any event, at that moment, prior to the initiation of the repair or replacement, the poles on the bottom of the ladder suddenly bent and the ladder slipped to the side, causing plaintiff and the ladder to topple to theground.
Plaintiff stated that he was " not belted up because there is nothing to hook a safety belt up to ... [and] [his] employer never told [him] that [he] had to hook up when [he is] on a ladder." There were no witnesses to the accident. Plaintiff thereafter discontinued all activity and drove directly from the accident scene to his home before seeking medical attention. Lancaster moves for summary judgment dismissing the complaint. Lancaster argues, initially, that since it did not hire the plaintiff or his employer to perform any work at the premises, and since it was not aware of the presence of the plaintiff or even the need for the service call, it should not be held liable for the alleged violation of Labor Law § 240 (1).
1. Assuming injury sustained by plaintiff during a repair or alteration, may a fee owner of a multiple dwelling be held vicariously liable under Labor Law§ 240 when such repair or alteration is made at the direction of the cable television service provider without the fee owner's prior knowledge and consent?
2. Does Public Service Law § 228 impose a " duty" upon a fee owner sufficient to trigger responsibility under Labor Law § 240?
Applicable Statutory Provisions
Labor Law § 240 provides as follows:
" 240. Scaffolding and other devices 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." (Emphasis supplied.)
Public Service Law § 228 provides:
" 1. No landlord shall (a) interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:
" (1) that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well being of other tenants;
" (2) that the cable television company or the tenant or a combination thereof bear the entire cost of the installation, operation ...