United States District Court, S.D. New York
August 22, 2005.
PATRICK CAPUTO, Plaintiff,
PNC BANK, PNC FINANCIAL SERVICES GROUP, INC., PNC REALTY SERVICES, LAND HOLDING INC. and LAND HOLDING, LLC., Defendants. PNC BANK, PNC FINANCIAL SERVICES GROUP, INC., PNC REALTY SERVICES, LAND HOLDING INC. and LAND HOLDING, LLC., Third-Party Plaintiffs, v. PRUDENTIAL SERLS COMMERCIAL GROUP, Third-Party Defendant.
The opinion of the court was delivered by: LOUIS STANTON, District Judge
OPINION and ORDER
Plaintiff's motion for summary judgment on liability is denied
for the reasons that follow.
Plaintiff, Patrick Caputo, was employed by A & J Heating and
Air Conditioning Services as a service technician in August 2003
when A & J was hired to "evaluate the condition" of the HVAC*fn1 units located at 900
Corporate Boulevard in Newburgh, New York. The building was owned
by defendant Land Holding Inc., a wholly-owned subsidiary of
defendant PNC Bank NA s/h/a PNC Bank. Prudential Serls Commercial
Group, third-party defendant, was the property manager.
In late spring of 2003 PNC Bank was arranging to rent 900
Corporate Boulevard and hired Favino Mechanical Service Inc. to
inspect the HVAC units at the premises and make sure they were in
proper working order. Once Favino submitted a service report, PNC
Bank hired A & J to inspect the units and provide a second
On August 26, 2003, plaintiff and a few other men from A & J
visited the site to assess what work, if any, needed to be
performed on the units. Although the building had a fixed
permanent interior ladder, they set up their own extension ladder
to climb to the roof where some of the units were located.
Plaintiff determined that one of the rooftop units needed to be
serviced and returned the next day with another man to work on
the unit. He again set up his own ladder to climb to the roof.
While he was climbing the ladder it slid out from under him, and
he fell, sustaining injuries. The building's permanent ladder was located within a utility
room. The ladder ran through a hatch in the ceiling of the
utility room to a landing area and continued up to the roof. The
door to the utility room was locked and Thomas LaPerch, the
on-site property manager, was the only person with a key to the
room. The parties disagree about plaintiff's access to that key.
Plaintiff alleges that he asked LaPerch for a key to the
utility room so that he could use the permanent ladder to climb
to the roof, and that LaPerch told him he did not have the key
and could not get it. Plaintiff testified that LaPerch told him
that everyone reached the roof by setting up their own ladder
against the outside wall of the utility room and climbing to the
top of the utility room, where the permanent ladder could then be
used to climb to the roof.
LaPerch testified to the contrary, that he never told anyone to
use a portable ladder to climb to the roof of the utility room to
access the permanent ladder. He denied ever seeing anyone climb
to the roof in that manner. He said that plaintiff never asked
him for a key and denied ever telling anyone that he did not have
the key to the utility room. Caputo sues to recover damages. He moves for summary judgment
on liability, arguing that by not making the permanent ladder
available to him, defendants violated New York Labor Law § 240(1)
as a matter of law.
New York Labor Law § 240(1) states:
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.
"[A]n accident alone does not establish a Labor Law § 240(1)
violation or causation. This Court has repeatedly explained that
`strict' or `absolute' liability is necessarily contingent on a
violation of section 240(1)." Blake v. Neighborhood Housing
Services of New York City, 1 N.Y.3d 280, 289 (N.Y. 2003). "Where
an owner or contractor fails to provide any safety devices,
liability is mandated by the statute." Zimmer v. Chemung County
Performing Arts, Inc., 65 N.Y.2d 513, 523 (N.Y. 1985).
Defendants did have a safety device. In the utility room near
the loading dock area was a permanent ladder that began at the ground level and extended all the way up to the
roof. The ladder was an adequate safety device and would have
provided plaintiff with proper protection when he climbed to the
Defendants failed, however, to "furnish" the permanent ladder
"to give proper protection" to plaintiff. Rather than being
available for plaintiff's use, the ladder was locked away in the
utility room and plaintiff did not have, and was not given, a
key. That was a violation of the statute. Mr. LaPerch testified:
Q. The building, the way it is situated today and the
way it was situated in August of '03, how many ways
are there to access the roof?
A. Well, either A through the utility closet to
access the interior ladder or I would assume you
would try to use a ladder if you can't get in.
LaPerch Transcript, 110:22-111:5.
The statutory duty on defendants to furnish a safety device
requires that the device be made available to provide proper
protection for workers. Keeping the ladder inaccessible in a
locked utility room violated that duty, even if the plaintiff had
his own ladder, and could have asked (as he says he did) for a
key to the room. Once that violation occurred, liability
attached. As stated in Blake:
Once the plaintiff makes a prima facie showing the
burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only
if there is a plausible view of the evidence enough
to raise a fact question that there was no
statutory violation and that plaintiff's own acts or
omissions were the sole cause of the accident.
1 N.Y.3d at 289 n. 8.
Under Blake, the analysis of proximate cause is broadened to
this extent: when the superior safety device was rendered
inaccessible by the defendant, its absence required plaintiff to
use a substitute. When that substitute failed, the unavailability
of the superior device is regarded as a cause of the injury. This
expresses the purpose of § 240 and the importance of deterring
violations of it, even if a strict analysis at common law would
have viewed the violation as too remote a cause to impose
liability. Having installed the superior device, the owner
renders it inaccessible at his peril.
In order to be protected by the statute, plaintiff had to be
performing one of the activities enumerated in the statute at the
time of his accident. See Esposito v. New York City Industrial
Development Agency, 1 N.Y.3d 526, 528 (N.Y. 2003) ("Section
240(1) applies where an employee is engaged "in the erection,
demolition, repairing, altering, painting, cleaning or pointing
of a building or structure."). The New York courts distinguish between repair work
performed on HVAC units, which is covered under the statute, and
routine maintenance of those units, which is not covered. See
Esposito, 1 N.Y.3d at 528 ("Although repairing is among the
enumerated activities, we have distinguished this from `routine
"Case law indicates that replacement of parts that wear out
routinely should be considered maintenance, outside the purview
of Labor Law § 240(1), as opposed to replacement of
non-functioning components of a building or structure." Jehle v.
Adams Hotel Associates, 695 N.Y.S.2d 22, 24 (N.Y.App. Div.
1999) (internal citations omitted). "`[B]ecause the devil is, as
always, in the details,' the paramount issue becomes whether the
item being worked on was inoperable or malfunctioning prior to
the commencement of the work." Craft v. Clark Trading Corp.,
684 N.Y.S.2d 48, 49 (N.Y.App. Div. 1999) (internal citations
Plaintiff argues that he was attempting to repair a
malfunctioning rooftop HVAC unit on the date of his accident. He
testified that "It seemed to be the igniter was not igniting,
causing no heat from one of the units." Caputo Transcript,
46:14-16. However, the August 27, 2003 scope of work report
submitted by A & J, plaintiff's employer, to PNC Bank describes
the necessary work as "SERVICE AND PERFORM PREVENTATIVE MAINTENANCE AT (2) GAS/HEATING
ELECTRIC COOLING ROOFTOP UNITS." D'Erasmo Affirmation, Exhibit B.
There is no mention of a malfunctioning unit.
The July 1, 2003 report and invoice from Favino is similarly
devoid of any mention of a malfunction. It states, rather, that
the "overall HVAC equipment condition appears to be good very
good." D'Erasmo Aff. Exhibit A. The report says that they "found
only minor repairs required and for the most part will only
require thorough service and maintenance," and the equipment
breakout states that the individual units require merely "routine
maintenance" or "only maintenance." Id.
There is no mention of a malfunctioning HVAC unit until the
post-accident invoices. The September 12, 2003 Favino invoice
states the following problem exists with the small packaged
rooftop unit: "Heat does not energize. We have traced the problem
to the 2 stage gas valve which requires replacement." Esposito
Aff. Exhibit B. The September 22, 2003 A & J invoice lists parts
of the units that were replaced and states "LARGE ROOFTOP UNIT
NEEDS TWO STAGE GAS VALVE," but does not mention any heating
problem or malfunction. Esposito Aff. Exhibit C. Thus, the evidence does not establish as a matter of law that
plaintiff was performing repair rather than maintenance work at
the time of his accident. It is a mixed question of fact and law,
which precludes summary judgment.
Although defendants failed to furnish a proper ladder, it is
unclear whether plaintiff was engaged in a protected activity at
the time of this accident. Accordingly, plaintiff's motion for
summary judgment is denied.
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