Gonzalez v. Woodbourne Arboretum, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: RANDALL T. ENG
• Citation: Gonzalez v. Woodbourne Arboretum, Inc., 2012 NY Slip Op 7628, 100 A.D.3d 694, 954 N.Y.S.2d 113 (N.Y. App. Div. 2012)
• Decision Date: 14 November 2012
• Parties: Harold M. GONZALEZ, etc., appellant-respondent, v. WOODBOURNE ARBORETUM, INC., et al., respondents-appellants, et al., defendant.

100 A.D.3d 694

954 N.Y.S.2d 113

2012 N.Y. Slip Op. 07628

Harold M. GONZALEZ, etc., appellant-respondent,

v.WOODBOURNE ARBORETUM, INC., et al., respondents-appellants, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 14, 2012.

Kelner & Kelner, New York, N.Y. (Gail S. Kelner and Gerard K. Ryan, Jr., of counsel), for appellant-respondent.

Flynn, Gibbons & Dowd, New York, N.Y. (Lawrence A. Doris of counsel), for respondents-appellants.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County, (Jones, Jr., J.), dated July 28, 2011, as denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) and granted those branches of the motion of the defendants Woodbourne Arboretum, Inc., and Woodbourne Cultural Nurseries, Inc., which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against them, and the defendants Woodbourne Arboretum, Inc., and Woodbourne Cultural Nurseries, Inc., cross-appeal from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action is barred by the Workers' Compensation Law and granted the plaintiff's cross motion for summary judgment dismissing their fourth and fifth affirmative defenses.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In June 2005, the decedent, Ciro A. Mata, was employed by nonparty Leonard Litwin to perform landscaping work on property owned by Litwin and property owned by the defendant Woodbourne Arboretum, Inc. (hereinafter the Arboretum), a corporation of which Litwin was president. On June 28, 2005, an employee of the defendant Woodbourne Cultural Nurseries, Inc. (hereinafter the Nursery), brought an irrigation device known as a “water cannon” to a garage located on the Arboretum's grounds so that a mechanic employed by Litwin could help him replace the water cannon's rear axle, which had worn thin, causing the machine to leak. At the end of the day, the two men working on replacing the axle asked the decedent to assist them by acting as a spotter while they moved the water cannon, which was approximately 10 to 12 feet tall and weighed more than one ton, off two jack stands in order to get it completely inside the garage for the night. Just after the move was completed, the water cannon tipped over and fell on the decedent, causing his death. After the accident, the decedent's family received Workers' Compensation benefits through an insurance policy maintained by Litwin. The plaintiff, as administrator of the decedent's estate, subsequently commenced this action against, among others, the Nursery and the Arboretum (hereinafter together the defendants) alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common-law negligence.

After the completion of discovery, the plaintiff moved for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, contending that the accident fell within the ambit of the statute because the water cannon was a structure undergoing repair which fell because it was hoisted in a dangerous manner. The defendants countered by jointly moving for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action was barred by the Workers' Compensation Law either because the decedent was their special employee, or because they were Litwin's alter ego or joint venturer. In the alternative, the defendants argued that the plaintiff's Labor Law § 240(1) cause of action should be dismissed because the work being performed on the water cannon constituted routine maintenance which was not covered by the statute. The defendants also contended that the plaintiff's Labor Law § 241(6) cause of action should be dismissed because the accident did not occur in an area where construction, excavation, or demolition work was being performed. The plaintiff then cross-moved for summary judgment dismissing the defendants' fourth affirmative defense that the action was barred by the Workers' Compensation Law, and fifth affirmative defense that the decedent was the defendants' special employee. The Supreme Court denied the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and granted those branches of the defendants' motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against them. The Supreme Court also denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that the action was barred by the Workers' Compensation Law, and granted the plaintiff's cross motion to dismiss their fourth and fifth affirmative defenses, concluding that the evidence established that the decedent was employed solely by Litwin, that the defendants were corporate entities distinct from Litwin, and that the decedent was not the defendants' special employee because they did not direct and control his work.

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action, and granted those branches of the defendants' motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against them. “While the reach of section 240(1) is not limited to work performed on actual construction sites ... the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” ( Martinez v. City of New York, 93 N.Y.2d 322, 326, 690 N.Y.S.2d 524, 712 N.E.2d 689). Here, the deposition testimony upon which both the plaintiff and the defendants relied in support of their respective motions established that the decedent was assisting workers who were engaged in replacing a component of the water cannon which had worn thin, causing the machine, which remained operable, to leak. The replacement of a worn-out component in an operable piece of machinery constitutes “routine maintenance” rather than “repair” or “alteration,” and thus falls outside the protective scope of Labor Law § 240(1) ( see Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53, 781 N.Y.S.2d 477, 814 N.E.2d 784;Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080;Gleason v. Gottlieb, 35 A.D.3d 355, 356, 826 N.Y.S.2d 633;Wein v. Amato Props., LLC, 30 A.D.3d 506, 507, 816 N.Y.S.2d 370;Jones v. Village of Dannemora, 27 A.D.3d 844, 845–846, 811 N.Y.S.2d 186;Detraglia v. Blue Circle Cement Co., 7 A.D.3d 872, 873, 776 N.Y.S.2d 342). Furthermore, since the decedent's accident did not occur in connection with construction, demolition, or excavation work, Labor Law § 241(6) does not apply ( see Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d at 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080;Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581, 782 N.E.2d 558;Enos v. Werlatone, Inc., 68 A.D.3d 713, 715, 890 N.Y.S.2d 109;Hurtado v. Interstate Materials Corp., 56 A.D.3d 722, 868 N.Y.S.2d 129;Irizarry v. State of New York, 35 A.D.3d 665, 666, 828 N.Y.S.2d 113;Goad v. Southern Elec. Intl., 304 A.D.2d 887, 888, 758 N.Y.S.2d 184).

The Supreme Court also properly determined that the action is not barred by the Workers' Compensation Law. Workers' Compensation Law §§ 11 and 29(6) provide that an employee who elects to receive compensation benefits may not sue his or her employer in an action at law for the injuries sustained. These exclusivity provisions have also been applied to shield persons or entities other than the injured plaintiff's direct employer from suit, including special employers ( see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 357–358, 850 N.Y.S.2d 359, ...