Jose A. Soto, Plaintiff-Appellant,
J. Crew Inc., et al., Defendants-Respondents.
Lurie, Ilchert, MacDonnel & Ryan, LLP, New York (Robert R. MacDonnel of counsel), for appellant.
Mauro Lilling Naparty LLP, Great Neck (Anthony F. DeStefano of counsel), for respondents.
Mazzarelli, J.P., Catterson, DeGrasse, Manzanet-Daniels, Román, JJ.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 26, 2011, which granted defendants' motions for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, affirmed, without costs.
Plaintiff, an employee of a commercial cleaning company that contracted with the J. Crew defendants to provide general daily maintenance services to their store, was injured when he fell off an A-frame ladder while dusting the top of a shelf. The dismissal of the Labor Law § 240(1) cause of action was proper. The dusting of the shelf constituted routine maintenance and was not the type of activity that is protected under the statute (see Diaz v Applied Digital Data Sys., 300 A.D.2d 533 ). The term "cleaning" as used under the statute is not to be as broadly applied as plaintiff suggests (see Dahar v Holland Ladder & Mfg. Co., 8 N.Y.3d 521');">18 N.Y.3d 521, 526, ).
All concur except Catterson, J. who concurs in a separate memorandum as follows:
CATTERSON, J. (concurring)
I concur because I am constrained by the Court of Appeals' recent holding in Dahar v. Holland Ladder & Mfg. Co., 8 N.Y.3d 521');">18 N.Y.3d 521, ___ N.E.2d ___, 2012 N.Y.Slip Op 01322 (2012), which, nevertheless, in my opinion cannot be reconciled with extensive recent precedent of the Court or the plain wording of Labor Law § 240(1).
The plaintiff correctly asserts that Swiderska v. New York Univ., (10 N.Y.3d 792');">10 N.Y.3d 792, 856 N.Y.S.2d 533, 886 N.E.2d 155 (2008)), and Broggy v. Rockefeller Group, Inc., (8 N.Y.3d 675');">8 N.Y.3d 675, 839 N.Y.S.2d 714, 870 N.E.2d 1144 (2007)), both stand for the proposition that commercial cleaning is a protected activity under Labor Law § 240(1).
In Broggy, Judge Read, writing for a unanimous Court, began the analysis by quoting section 240(1):
"All contractors and owners and their agents... 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 in the original).
Broggy, 8 N.Y.3d at 680, 839 N.Y.S.2d at 716-717.
The Court next held that, "[t]hus, cleaning' is expressly afforded protection under section 240(1) whether or not incidental to any other enumerated activity." 8 N.Y.3d at 860, 839 N.Y.S.2d at 717. The Court made plain that its prior decisions in Joblon v. Solow, (91 N.Y.2d 457, 672 N.Y.S.2d 286, 695 N.E.2d 237 (1998)), and Panek v. County of Albany, (99 N.Y.2d 452, 758 N.Y.S.2d 267, 788 N.E.2d 616 (2003)), were not to the contrary. Both Joblon and Panek "dealt with the meaning of the statutory term altering, ' not cleaning.'" Broggy, 8 N.Y.3d at 681, 839 N.Y.S.2d at 717. " Altering' and cleaning' are discrete categories of activity under section 240(1)." Id.
In Broggy, the defendants contended that the Court's prior holding in Bauer v. Female Academy of Sacred Heart, (97 N.Y.2d 445, 741 N.Y.S.2d 491, 767 N.E.2d 1136 (2002)), should be construed as limiting section 240(1) protection in a window cleaning context to exterior windows. The Court rejected this distinction and set out ...