Kharie v. S. Shore Record Mgmt., Inc.

• Decision Date: 25 June 2014
• Parties: Harriram Roy KHARIE, respondent, v. SOUTH SHORE RECORD MANAGEMENT, INC., doing business as South Shore Records Management, et al., appellants.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 955

988 N.Y.S.2d 654

2014 N.Y. Slip Op. 04738

Harriram Roy KHARIE, respondent,

v.SOUTH SHORE RECORD MANAGEMENT, INC., doing business as South Shore Records Management, et al., appellants.

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

June 25, 2014.

James R. Pieret (McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. [Robert W. Gifford and John P. Cookson], of counsel), for appellants.

Lever & Stolzenberg, LLP, White Plains, N.Y. (Terrence James Cortelli of counsel), for respondent.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Dufficy, J.), dated March 14, 2013, which granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is affirmed, with costs.

On June 25, 2011, the plaintiff, an employee of nonparty Workforce Logistics Corp., was injured when he fell approximately 12 feet from one of the shelves he was in the process of dismantling at the defendants' warehouse. The shelving, which was being dismantled and reassembled in a different portion of the warehouse, was free-standing, and the shelves were connected in a tongue-and-groove fashion, some of which required the use of a hammer to separate the pieces. The plaintiff was not provided with any safety equipment and, at the time of the accident, was standing on the one of the shelves in order to disassemble the higher levels of the shelving unit.

The plaintiff commenced this personal injury action, alleging, inter alia, a violation of Labor Law § 240(1). He moved for summary judgment on the issue of liability on that cause of action. The Supreme Court granted the motion. We affirm.

Labor Law § 240(1) provides that:

“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] ).

Labor Law § 240(1) imposes on owners a nondelegable duty to protect workers from elevation-related risks at covered work sites ( see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117;Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932;McCoy v. Kirsch, 99 A.D.3d 13, 951 N.Y.S.2d 32). “Negligence, if any, of the injured worker is of no consequence” ( Rocovich v. Consolidated Edison Co., 78 N.Y.2d at 513, 577 N.Y.S.2d 219, 583 N.E.2d 932). In order for Labor Law § 240(1) to apply, the worker must be working on a building or structure and must be performing a covered task, such as altering or demolishing.

The Court of Appeals has defined a structure as “any production or piece of work artificially built up or composed of parts joined together in some definite manner” ( Joblon v. Solow, 91 N.Y.2d 457, 464, 672 N.Y.S.2d 286, 695 N.E.2d 237 [internal quotation marks omitted]; see Lewis–Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434;McCoy v. Kirsch, 99 A.D.3d 13, 951 N.Y.S.2d 32;Pino v. Robert Martin Co., 22 A.D.3d 549, 802 N.Y.S.2d 501;Sinzieri v. Expositions, Inc., 270 A.D.2d 332, 704 N.Y.S.2d 293).

Contrary to the defendants' contentions, the shelves at issue constituted a “structure” under Labor Law § 240(1), as they were composed of component pieces (metal grates and cross bars) attached in a definite manner ( see Pino v. Robert Martin Co., 22 A.D.3d at 552, 802 N.Y.S.2d 501). Furthermore, at the time of the...