Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered December 20, 2007 in a personal injury action. The order, insofar as appealed from, granted the motion of plaintiff for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim and denied in part the cross motion of defendant for summary judgment dismissing the complaint.
The opinion of the court was delivered by: Centra, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PINE, JJ.
It is hereby ORDERED that the order so appealed from is modified on the law by denying the motion and by granting that part of the cross motion for summary judgment dismissing the Labor Law § 240 (1) claim and dismissing that claim and as modified the order is affirmed without costs.
The primary issue on this appeal is whether plaintiff was engaged in "cleaning" under Labor Law § 240 (1) at the time of the accident. We conclude that he was not and thus that Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability with respect to the Labor Law § 240 (1) claim and in denying that part of defendant's cross motion for summary judgment dismissing that claim.
At the time of the accident, plaintiff was working at an alternative fuel processing facility owned by defendant. The paper that was processed to produce alternative fuel was first shredded in the processing facility and then burned in the generating facility. Plaintiff was working in the "bag house" of the processing facility, which was in effect a giant vacuum that collected paper dust particles from the facility. The bag house contained hoppers to collect the dust particles, and the particles would then fall onto an auger that pushed them into a "push bin." Those particles would then be sent to the generating facility to be burned. Between one and five times during a 12-hour shift, the hoppers would become bound with dust particles and would need to be unclogged. To do so, workers such as plaintiff would then climb a ladder, straddle the auger, open the door to the bag house, and push the dust down the hoppers with a broom handle. As plaintiff was descending the ladder after unclogging the hoppers on the date of the accident, he fell five feet to the ground.
Plaintiff commenced this action asserting a cause of action for common-law negligence as well as a cause of action for violations of the Labor Law. Plaintiff moved for partial summary judgment on the Labor Law § 240 (1) claim, alleging that he was "cleaning" at the time of the accident and "was provided with an inappropriate ladder to perform his work." Defendant cross-moved for summary judgment dismissing the complaint and, with respect to the Labor Law § 240 (1) claim, it alleged that plaintiff was engaged in routine maintenanceat the time of the accident, which is not an enumerated activity under the statute. With respect to the common-law negligence cause of action and Labor Law § 200 claim, defendant alleged that it did not have the authority to and did not actually direct or control plaintiff's work. Defendant contends on appeal that the court erred in granting the motion and in denying that part of its cross motion with respect to the common-law negligence cause of action and section 200 and section 240 (1) claims.
Addressing first the Labor Law § 240 (1) claim, we note that section 240 (1) protects employees engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (emphasis added). The only issue raised by the parties with respect to that claim is whether the court erred in concluding that plaintiff was engaged in "cleaning" and not ...