Jose A. SOTO, Appellant,
J. CREW INC. et al., Respondents.
[976 N.Y.S.2d 422]
Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., of counsel), for
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano and Caryn L. Lilling of counsel), for respondents.
[998 N.E.2d 1046] Plaintiff, an employee of a commercial cleaning company hired to provide janitorial services for a retail store, was injured when he fell from a four-foot-tall ladder while dusting a six-foot-high display shelf. He brought a Labor Law § 240(1) action against J. Crew, the retail store, and The Mercer I L.L.C., the building owner. Both lower courts held that defendants were entitled to summary judgment because the activity plaintiff was engaged in at the time of his fall was not the type of " cleaning" covered by Labor Law § 240(1). Because we agree, we now affirm.
Defendant J. Crew hired Whelan Cleaning Services to provide custodial services at a retail store located in Lower Manhattan. Whelan assigned plaintiff Jose Soto responsibility for daily maintenance of the store. Each day, Soto would report for work several hours before the establishment opened to ready the premises for business, vacuuming, mopping, cleaning bathrooms, emptying garbage and the like. After the store opened, and for the remainder of his shift, he did spot cleaning, tidying shelves, dusting, wiping down the entrance door, sweeping up debris and scraping gum from the floor, as necessary.
On the day of the incident, a J. Crew employee noticed that a six-foot-high wooden shelf used to display clothing was dusty and she asked Soto to clean it. Equipped with a " high duster" (a Swiffer duster with a long handle), Soto— who is five feet, 10 inches tall— positioned a four-foot-high A-frame ladder on the
floor in front of the shelf. It is undisputed that the ladder was in proper working order and that Soto locked it in the open position prior to climbing the steps. As he was dusting the shelf, however, both Soto and the ladder fell over, allegedly causing Soto to injure his back, knee and elbow.
Soto commenced this personal injury action against J. Crew and the building owner seeking recovery under Labor Law § 240(1), among other theories. After discovery, defendants moved for summary judgment, asserting that Soto's cleaning activities constituted " routine maintenance" and not the type of cleaning protected by the statute. They further contended that, even if Soto had been engaged in a covered activity, he failed to establish that he was necessarily exposed to an elevation-related risk or that the ladder was defective or inappropriate to the assigned task. Alternatively, defendants noted that Soto was an insulin-dependent diabetic with other health conditions that might have contributed to the fall and that further discovery was warranted to ascertain the extent to which the fall could be attributed to his medical conditions.
Soto opposed the motions and cross-moved for partial summary judgment on liability on the Labor Law § 240(1) claim. He argued that the statute applied because he was engaged in " cleaning" and was required to dust a shelf at an elevated level, contending that all commercial cleaning is covered by the statute. He also submitted the affidavit of an engineer who opined that Soto was not provided with proper protection for his elevated work because the ladder was not secured in some manner, such as being held by another store employee.
Supreme Court denied Soto's cross motion and granted summary judgment to [998 N.E.2d 1047] [976 N.Y.S.2d 423] defendants dismissing the Labor Law § 240(1) claim, reasoning that the statute does not apply to workers employed on a daily basis to conduct routine commercial cleaning, such as the dusting, sweeping, mopping and general tidying at issue here ( 2011 N.Y. Slip Op. 32518[U]  ). The Appellate Division unanimously affirmed in two separate writings ( 95 A.D.3d 721, 945 N.Y.S.2d 255 [1st Dept.2012] ). In a memorandum, the majority held that " [t]he dusting of the shelf constituted routine maintenance and was not the type of activity that is protected under the statute" ( id. at 721, 945 N.Y.S.2d 255). The concurrence agreed that dismissal of the claim was required on constraint of this Court's then-recent ...