Ju Kim v. Herbert Construction Company, Inc.

• Decision Date: 11 September 2000
• Citation: 275 A.D.2d 709,713 N.Y.S.2d 190
• Court: New York Supreme Court — Appellate Division
• Parties: YONG JU KIM et al., Appellants-Respondents,<BR>v.<BR>HERBERT CONSTRUCTION COMPANY, INC., Defendant and Third-Party Plaintiff-Respondent, and<BR>COYNE ELECTRICAL CONTRACTORS, Defendant and Third-Party Plaintiff-Respondent-Appellant.<BR>SHERRY-NETHERLAND, INC., Third-Party Defendant-Respondent-Appellant, et al., Third-Party Defendant.

275 A.D.2d 709

713 N.Y.S.2d 190

YONG JU KIM et al., Appellants-Respondents,

v.HERBERT CONSTRUCTION COMPANY, INC., Defendant and Third-Party Plaintiff-Respondent, andCOYNE ELECTRICAL CONTRACTORS, Defendant and Third-Party Plaintiff-Respondent-Appellant.

SHERRY-NETHERLAND, INC., Third-Party Defendant-Respondent-Appellant, et al., Third-Party Defendant.

Decided September 11, 2000.

O'Brien, J.P., Santucci, Thompson and Feuerstein, JJ., concur.

Ordered that the appeal by the plaintiffs from so much of the order entered February 8, 1999, as granted that branch of the motion of the defendant Coyne Electrical Contractors, Inc., which was to dismiss the cause of action based on Labor Law § 200 is dismissed, without costs or disbursements, as that portion of the order was superseded by the order dated October 13, 1999, which, upon reargument, reinstated that cause of action; and it is further,

Ordered that the appeal by Sherry-Netherland, Inc., from the order entered February 8, 1999, is dismissed, without costs or disbursements, as the portion of the order appealed from was superseded by so much of the order dated October 13, 1999, as, upon reargument, adhered to its prior determination; and it is further,

Ordered that the order dated October 13, 1999, is modified by adding thereto a provision dismissing the plaintiffs' cause of action based on Labor Law § 241 (6); as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,

Ordered that the order entered February 8, 1999, is modified by (1) vacating the provision thereof denying those branches of the motions of Sherry-Netherland, Inc., and Coyne Electrical Contractors, Inc., which were to dismiss the plaintiffs' cause of action based on Labor Law § 241 (6), (2) deleting therefrom the provision denying the motion of Sherry-Netherland, Inc., to dismiss the third-party complaint asserted by Coyne Electrical Contractors, Inc., and substituting therefor a provision granting the motion to the extent that the plaintiffs' recovery does not exceed the limits of the liability insurance policy purchased by Coyne Electrical Contractors, Inc., in which Sherry-Netherland, Inc., is named as an additional insured, and otherwise denying the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff Yong Ju Kim (hereinafter the plaintiff), was employed by Sherry-Netherland, Inc., as an electrician on the staff of the Sherry Netherland Hotel (hereinafter referred to collectively as Sherry-Netherland), which is a combination hotel and residential apartment building. Coyne Electrical Contractors, Inc. (hereinafter Coyne), was hired by Sherry-Netherland to renovate the panels in the electrical closets on each floor. Herbert Construction Company, Inc. (hereinafter Herbert), was the construction manager for Sherry-Netherland.

According to the plaintiff, an accident occurred while he was attempting to determine the cause of a malfunctioning outlet in one of the rooms on the ninth floor. After he checked the outlet in the room, he went to the electrical closet in the hallway and saw that the panel cover was open and that some of the wires had been cut. He received an electrical shock when he used an ampere gauge to determine whether any of the wires were live.

The plaintiff claimed that Coyne employees had worked on this particular electrical closet prior to his accident. However, Coyne maintained that its employees had not replaced the panel in the electrical closet, that the plaintiff was working on an old panel, that its employees were not working on the ninth floor on the day of the accident, and that the accident occurred when the plaintiff attempted to remove a fuse with a tool. The plaintiff's supervisor, a Sherry-Netherland employee, stated that he unlocked the electrical closet for the plaintiff, and that he did not observe any cut wires. He corroborated Coyne's claim that its employees had not worked on that particular electrical closet prior to the accident.

The plaintiffs commenced the instant action to recover damages based on common-law negligence and violations of Labor Law §§ 200, 240 (1), and § 241 (6) against Herbert and Coyne. Herbert and Coyne commenced separate third-party actions against Sherry-Netherland for indemnification and contribution.

The plaintiffs acknowledged in their motion papers that Labor Law § 240 is inapplicable to the facts of this case, and no issue is raised on appeal with respect to the dismissal of that cause of action.

The Supreme Court erred in failing to dismiss the cause of action based on Labor Law § 241 (6) as the plaintiff did not fall within the class of persons protected by that statute. Labor Law § 241 (6) is designed to provide protection to workers engaged in renovation or construction work (see, Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573). However, "[n]ot every employee lawfully on the property is necessarily affiliated with the construction work * * * or is otherwise `frequenting the premises within the meaning of Labor Law § 241 (6)' * * * The statutory protection does not extend, for example, to employees performing routine maintenance tasks at a building that happens to be undergoing construction or renovation" (Blandon v Advance Contr. Co., 264 AD2d 550, 552; see also, Lynch v Abax, Inc., 268 AD2d 366; Moses v Pinazo, 265 AD2d 391; Sommerville v Usdan, 255 AD2d 500; Agli v Turner Constr. Co., 246 AD2d 16; Zevallos v Treeco Plainview Ltd. Partnership, 267 AD2d 305).

The facts of this case are distinguishable from Joblon v Solow (91 NY2d 457), where the Court of Appeals held that Labor Law § 241 (6) applied because the type of work being performed by the "house electrician" at the time of his injury constituted alteration work which was encompassed by the Labor Law. Here, the work performed at the time of the plaintiff's injury constituted routine maintenance activity. Accepting the plaintiff's version of the facts as true for the purposes of the motion, he was merely attempting to locate the cause of a malfunctioning outlet in one of the rooms.

The protection of ...