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Hoyos v. NY-1095 Avenue of Americas, LLC

Supreme Court of New York, First Department

December 14, 2017

William Fabian Hoyos, Plaintiff-Respondent,
NY-1095 Avenue of the Americas, LLC, Defendant-Appellant, Structure Tone, Inc., Defendant. [And a Third Party Action]

          Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.

          The perecman Firm, P.L.L.C., New York (David H. Perecman of counsel), for respondent.

          Tom, J.P., Richter, Mazzarelli, Manzanet-Daniels, Gische, JJ.

         Order, Supreme Court, New York County (Debra A. James, J.), entered March 24, 2016, which, to the extent appealed from as limited by the briefs, denied the motion of defendant NY-1095 Avenue of the Americas, LLC (NY-1095) for summary judgment dismissing plaintiff's claims under Labor Law §§ 240(1), 200 and common-law negligence, and granted plaintiff's cross motion for summary judgment as to liability on the Labor Law § 240(1) claim, affirmed, without costs.

         Plaintiff, a painter employed by a subcontractor hired by defendant Structure Tone in connection with a renovation project, was injured when he slipped or fell off an elevated loading dock. The accident occurred as plaintiff stood in line with other construction workers, waiting to sign a security log and obtain a pass that would allow him to enter into the building where he was working. The loading dock, which was approximately four feet off the ground, had no guardrails, chain, rope, or other indication where its platform ended and the ledge began. When the accident occurred, at approximately 6:30 a.m., the dock was overcrowded with workers reporting for work. The dock, located in a service entrance, was the sole designated means for all construction workers to gain access into the 42 story commercial office building owned by NY-1095 and managed by nonparty Equity Office. Access to the loading dock itself was through a sliding garage door that remained locked until it was opened by building security in the morning.

         At the time of the accident, plaintiff had been working on the construction project for approximately one month. His particular assignment was to paint several of the floors that had been renovated by Metropolitan Life Insurance Company (MetLife), one of the building's tenants. The morning of the accident, plaintiff was reporting for work and following the building's usual sign in procedure, which required that he and any other construction workers entering the building use the service entrance. None of the contractors were allowed to use the lobby to gain access into the building. The loading dock led to a ramp at the top of which was a guard who sat at a small security desk

         Since construction workers were not allowed to enter through the main entrance the same way tenants do, when the accident occurred, the loading dock was crowded with "quite a few" workers on line waiting to sign in. Only after signing in with the security guard and obtaining a pass would plaintiff (or any of the other construction workers) be allowed to gain access to the interior of the building.

         NY-1095's office lease agreement with MetLife, dated December 19, 2006 (lease), has several exhibits, schedules and attachments that are incorporated into and made a part of the lease. Particularly germane to the issues raised in this appeal is Exhibit E-2 to the lease, "Alteration Rules and Regulations, " which includes "Contractor Rules and Regulations for Construction Projects." These rules and regulations set forth standards and procedures that had to be followed so as to insure that other tenants of the building were not inconvenienced by the construction. Among the owner's requirements were that all workers of the various contractors had to use the loading dock and freight elevator at all times; a prohibition against any contractor setting up "shop" outside a particular tenant's area, unless the owner approved of an alternate "shop" area; and a requirement that contractors' regular, weekly job meetings be scheduled so that members of the owner's management team could attend.

         Supreme Court did not err in finding that plaintiff was covered under Labor Law § 240(1) and granting plaintiff's motion for summary judgment. Labor Law § 240(1) requires that site owners, contractors and their agents provide safety devices and that they be "constructed, placedseeks to remove plaintiff from the protections of Labor Law § 240 (1), on the basis that plaintiff was not "working" at the time of the accident and he was in street clothes, those facts do not dictate whether an injury is within or without the protections of the Scaffold Law. This is not a situation where the plaintiff was injured after he had already completed an enumerated activity (Beehner v Eckerd Corp., 3 N.Y.3d 751');">3 N.Y.3d 751 [2004] [job completed, worker merely retrieving serial and model numbers from unit]), nor is it a situation where the task was not an enumerated activity, or even if it was, that it had not yet commenced (Simon v Granite Bldg. 2, LLC, 114 A.D.3d 749');">114 A.D.3d 749 [2d Dept 2014] [the plaintiff, hired to hang wall paper, was injured when the vehicle, in which he was riding, skidded on ice in garage]).

         Here, plaintiff, who had been working on this construction project for a month, was following the rules and regulations of the owner and building protocol that he wait outside a closed, gated service entrance until it was opened by the building's security staff. Once the gate was opened, and after proceeding through the gate, he could not travel directly upstairs to whichever floor he was assigned to paint. He was required to line up with other construction personnel and use the crowded, elevated loading dock to gain access into the building at the start of each workday and throughout the day whenever he needed to retrieve supplies. Plaintiff had no choice but to adhere to the owner's work site policy, and he was not provided with a safer or different means of gaining access to any other part of the building, including the area that MetLife was renovating in accordance to the terms of its lease with the owner. Since plaintiff's painting assignment related to a construction/renovation project within the building plaintiff was unquestionably engaged in an enumerated activity within the meaning of Labor Law § 240(1).

         Defendant contends, and the dissent agrees, that plaintiff was not engaged in an activity enumerated by the statute because he was not physically on the "construction site, " meaning any of the floors upstairs that he had to paint and, therefore, had not yet begun to work. The dissent nonetheless acknowledges that accidents occurring "on the job site" come within the protections of Labor Law § 240(1), even if they occur at a time when the plaintiff is not, or no longer, directly involved in the enumerated work (Reinhart v Long Is. Light Co, 91 A.D.2d 571');">91 A.D.2d 571');">91 A.D.2d 571');">91 A.D.2d 571, [1st Dept 1982] appeal dismissed 58 N.Y.2d 1113');">58 N.Y.2d 1113');">58 N.Y.2d 1113');">58 N.Y.2d 1113 [1983]). This distinction, based upon rigid definitions of what it means to be "on the job" or "on a job site" ignores the reality of what construction workers employed on projects in high rise buildings face where, as here, a renovation project within a building (i.e. a vertical "job site"), may very well extend over several, possibly noncontiguous floors.

         Labor Law § 240(1) should be "construed with a commonsense approach to the realities of the workplace at issue" (Salazar v Novalex Contracting Corp., 18 N.Y.3d 134, 140 [2011]). The loading dock and service entrance is within the multi-storied high rise building owned by NY-1095, in which the MetLife project took place in accordance with the lease, subject to the owner's rules and regulations. The building as a whole, and in particular those parts, which must be accessed by a worker to do his or her job, cannot be discounted as a job site simply because it is multi-storied and the dock is not in the immediate vicinity of the floor(s) above that plaintiff was assigned to paint.

         The fact that plaintiff was in the process of entering the building, but had not yet physically begun painting is not a basis to deny summary judgment. We have held, for instance, that a worker who is injured on a staircase that did not have any guardrails is entitled to the protections of the scaffold law, although his injury occurred while leaving the building and the alleged condition was not directly related to his assignment (see Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 A.D.3d 431');">100 A.D.3d 431, 432 [1st Dept 2012]). We have also held that a worker injured when he fell into a excavated hole at a work site is entitled to the protections of Labor Law § 240(1) although the worker had arrived early for work that day and was not yet performing his tasks (Amante v Pavarini McGovern, Inc., 127 A.D.3d 516');">127 A.D.3d 516');">127 A.D.3d 516');">127 A.D.3d 516 [1st Dept 2015]).

         In distinguishing these cases the dissent seeks to do so on their facts, pointing out that the accidents occurred on the job or construction site. Labor Law § 240(1), however, protects workers engaged in enumerated work activities. The statute does not use or define the term "construction site" or otherwise expressly limit its protections in that way. The salutary purpose of Labor Law § 240(1) is to protect workers from elevated risks which may manifest in many forms, and as succinctly stated by the Court of Appeals:

"Our jurisprudence defining the category of injuries that warrant the special protection of Labor Law ยง 240(1) has evolved over the last two decades, centering around a core premise: that a defendant's failure to provide workers with adequate protection from reasonably ...

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