Joblon v. Solow

• Decision Date: 30 April 1998
• Court: New York Court of Appeals Court of Appeals
• Parties: , 695 N.E.2d 237, 1998 N.Y. Slip Op. 4261 Richard JOBLON et al., Plaintiffs, v. Sheldon H. SOLOW and Avon Products, Inc., Defendants. Sheldon H. SOLOW, Third-Party Plaintiff, v. GELLER ELECTRIC CONSTRUCTION & MAINTENANCE, INC., Third-Party Defendant.

Page 286

672 N.Y.S.2d 286

91 N.Y.2d 457, 695 N.E.2d 237, 1998

N.Y. Slip Op. 4261

Richard JOBLON et al., Plaintiffs, v. Sheldon H. SOLOW and Avon Products, Inc., Defendants.

Sheldon H. SOLOW, Third-Party Plaintiff, v. GELLER ELECTRIC CONSTRUCTION & MAINTENANCE, INC.,

Third-Party Defendant.

Court of Appeals of New York.

April 30, 1998.

David P. Kownacki, P.C., New York City (David P. Kownacki, of counsel), for plaintiffs.

Barry, McTiernan & Moore, New York City (William E. Fay, III, of counsel), for Sheldon H. Solow, defendant/third-party plaintiff.

Fogelberg & Associates, P.C., New York City (Carl R. Fogelberg, of counsel), for Avon Products, Inc., defendant.

McMahon, Martine and Gallagher, New York City (Timothy D. Gallagher, of counsel), for third-party defendant.

OPINION OF THE COURT

KAYE, Chief Judge.

This appeal represents yet another attempt at the highly elusive goal of defining with precision statutory terms within Labor Law article 10 so as to minimize the need for litigation. Finding that no precedent of this Court four-square controls the definition of the term "altering" as used in Labor Law § 240(1) or in the Industrial Code provisions referenced by Labor Law § 241(6), the Second Circuit certified the following questions to us:

"(1) where an electrician fell from a ladder while employed to 'chop a hole through a block wall with a hammer and chisel' and route a conduit pipe and wire through the hole to install a wall clock, does New York Labor Law § 240(1) apply on the grounds that his work constituted an alteration or repair of a 'building' or 'structure' within the meaning of the statute; and

"(2) does New York Labor Law § 241(6) apply, based on his work being 'alteration,' 'repair,' or 'maintenance' within the meaning of the New York State Industrial Code, 12 N.Y.C.R.R. et seq." (135 F.3d 261, 262.)

We now answer both questions in the affirmative, concluding that because the work in which plaintiff was engaged constituted a significant physical change to the configuration or composition of the building, he was "altering" it within the meaning of the law. ¹

Facts

The certified questions arise from the following facts. Plaintiff Richard Joblon was an electrician in the employ of third-party defendant Geller Electric Construction and Maintenance. Geller was hired by defendant Avon Products to perform ongoing service as a house electrician at office space Avon leased from defendant Sheldon H. Solow at 9 West 57th Street in New York City.

Joblon had been working in the Avon space for a short time when a Geller supervisor directed him to install an electric wall clock in the mail room on the building's twentieth floor. Because the room lacked an outlet that could accommodate the clock, it was necessary for Joblon and a co-worker, George Schwab, to extend the electrical wiring from an adjacent utility room through a concrete block wall separating the rooms. To do so, they had to tap an existing power source in the utility room, run wires encased in conduit to the site of the hole in the wall of the utility room, break through the wall separating the rooms with a hammer and chisel, and ultimately direct the wires through the wall.

In the process of chiseling a hole between the utility room and the mail room to allow the extended wiring to pass through, Joblon and Schwab had to stand on a ladder. However, the contents and dimension of the utility room prevented the ladder from being fully opened, and it was instead only partially opened and leaned against the wall. Initially, Joblon and Schwab took turns standing on the ladder and chiseling while the other remained on the ground and secured its base. However, in the afternoon, Schwab went to the mail room on the other side of the wall to receive the extended electrical wire that Joblon had passed through the wall. Joblon ascended the unsecured ladder; while completing his work, the ladder shifted and he fell backward, sustaining injury.

Joblon and his wife brought suit in the United States District Court for the Southern District of New York, alleging negligence as well as violations of Labor Law § 240(1) and § 241(6). At the close of discovery, Joblon moved for partial summary judgment, and Geller cross-moved for summary judgment on liability under Labor Law § 240(1). The District Court denied Joblon's motion for summary judgment on the Labor Law § 240(1) claim and granted Geller's, concluding that it was more consistent with the underlying purpose of the statute to find that Joblon was engaged in mere "modification or extension of an existing system" and therefore was not repairing or altering the building (914 F.Supp. 1044, 1048). Defendants Solow and Avon thereafter sought summary judgment dismissing the Labor Law § 241(6) claim, which the District Court again granted, concluding that because Joblon was not "altering" under Labor Law § 240(1), he was not performing "construction" work within the meaning of Labor Law § 241(6) (945 F.Supp. 734, 739). On Joblon's appeal to the Second Circuit, a panel of that court certified the present two questions to us (22 NYCRR 500.17).

Analysis

Special statutory protections against the dangers of elevation-related hazards in the workplace have existed in this State since 1885 (see generally, Wingert v. Krakauer, 76 App.Div. 34, 78 N.Y.S. 664; L.1885, ch. 314). More than a century later, these protections are contained in Labor Law § 240(1), originally enacted in 1921, and which today reads:

"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" (Labor Law § 240[1] [emphasis added] ).

In Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898, we noted that " 'this statute is one for the protection of work[ers] from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed' " (id., at 520-521, 493 N.Y.S.2d 102, 482 N.E.2d 898, quoting Quigley v. Thatcher, 207 N.Y. 66, 68, 100 N.E. 596; see also, 1969 N.Y. Legis. Ann., at 407-409). Consistent with the legislative objective of worker protection for elevation-related risks, we have given the statute an expansive reading in a variety of circumstances (see, e.g., Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127, 626 N.E.2d 912; Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117).

Even against that backdrop, definition of particular terms within the statute continues to proliferate litigation. The narrow question whether a plaintiff was "altering" a building or structure--the question before us here--has proved no exception. Indeed, the Appellate Divisions have reached inconsistent results on essentially indistinguishable facts (compare, Tauriello v. New York Tel. Co., 199 A.D.2d 377, 605 N.Y.S.2d 373, and Dedario v. New York Tel. Co., 162 A.D.2d 1001, 557 N.Y.S.2d 794 ["altering"], with Kesselbach v. Liberty Haulage, 182 A.D.2d 741, 582 N.Y.S.2d 739, and Borzell v. Peter, 285 App.Div. 983, 138 N.Y.S.2d 589 [not "altering"]; see also, Malsch v. City of New York, 232 A.D.2d 1, 662 N.Y.S.2d 458 [noting conflict] ). As the District Court observed, "the cases [provide] ample authority for either side's case" (921 F.Supp. 218, 220).

In support of the District Court's conclusion that Joblon was not engaged in "altering" at the time of his accident, defendants point to the title of article 10 of the Labor Law, "Building Construction, Demolition and Repair Work," and note that it was created to place "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 N.Y. Legis. Ann., at 407 [emphasis added] ). Thus, defendants suggest that a guiding principle for courts should be to examine the context of the work leading to the injury, and only when it is performed as part of a building construction job should Labor Law § 240(1) liability attach.

Such a rule would, of course, ignore our prior holdings that workers injured while cleaning a railway car (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra ), repairing an electrical sign (Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318) or painting a house (Rivers v. Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191) come within the ambit of the statute even though they were not working at a building construction site. Furthermore, we have already defined a "structure," for purposes of Labor Law § 240(1), as " 'any production or piece of work artificially built up or composed of parts joined together in some definite manner' " (Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434). Now to limit the statute's reach to work performed on a construction site would eliminate possible recovery for work performed on many structures falling within the definition of that term but found off construction sites (see, e.g., id. [telephone pole]; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra [railway car] ).

Plaintiff, by contrast, urges that we adopt the definition of "altering" framed by the Appellate Division in Cox v. International Paper Co. (234 A.D.2d 757, 651 N.Y.S.2d 230). In Cox, the court considered whether plaintiff, who fell from a height while replacing some piping on a paper machine, was engaged in "altering" at the time of his injury. After...