Koch v. E.C.H. Holding Corp.
| Decision Date | 16 March 1998 |
| Citation | 669 N.Y.S.2d 896,248 A.D.2d 510 |
| Parties | 1998 N.Y. Slip Op. 2532 Robert KOCH, Appellant, v. E.C.H. HOLDING CORP., Defendant Second Third-Party Plaintiff-Respondent, et al., Respondents; Dame Construction, Inc., Defendant Third-Party Plaintiff-Respondent, Suffolk Cement Products, Inc., Third-Party Defendant Second Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Sullivan & Liapakis, P.C., New York City (Harvey G. Lockhart and Stephen C. Glasser of, counsel), for appellant.
Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Eugene Patrick Devany, of counsel), for defendant second third-party plaintiff-respondent E.C.H. Holding Corp.
Philip J. DeBellis, Melville, for defendant third-party plaintiff-respondent Dame Construction, Inc.
O'Connor & O'Connor, White Plains (Richard S. Sklarin, of counsel), for third-party defendant second third-party defendant-respondent Suffolk Cement Products, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated October 7, 1996, which, inter alia, granted the respective motions by the third-party defendant second third-party defendant Suffolk Cement Products, Inc., the defendant third-party plaintiff Dame Construction, Inc., and the defendant second third-party plaintiff E.C.H. Holding Corp., and the second third-party plaintiff Dennis McSpedon, as Treasurer of the Joint Industry Board of the Electrical Industry, for summary judgment dismissing the complaint, third-party complaints, and all cross claims and counterclaims insofar as asserted against them, and denied his cross motion for summary judgment.
ORDERED that the order is affirmed, with one bill of costs.
The plaintiff was employed by the third-party defendant second third-party defendant, Suffolk Cement Products, Inc. (hereinafter Suffolk), as a cement truck driver. On December 11, 1989, he delivered cement to a site in Southampton where a building was being constructed by the defendant third-party plaintiff Dame Construction, Inc. (hereinafter Dame) on property owned by the defendant second third-party plaintiff E.C.H. Holding Corp. (hereinafter E.C.H.). After making the delivery, the plaintiff drove his truck a short distance away and began washing out the truck, using the hose and water that were on the truck. After washing the cement chutes, the plaintiff climbed a ladder to a platform on the top of the truck to wash the hopper and the rim of the barrel. The plaintiff was standing on the platform when his feet slipped and he fell to the ground.
The plaintiff subsequently commenced this action pursuant to Labor Law §§ 240(1) and 241(6) against, among others, E.C.H. and Dame, which then commenced third-party actions against Suffolk, the plaintiff's employer.
Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for the protection of workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932; see also, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82). However, the protection of the statute is limited by its express terms to those situations involving "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (see, Smith v. Shell Oil Co., 85 N.Y.2d 1000, 630 N.Y.S.2d 962, 654 N.E.2d 1210; Jock v. Fien, 80 N.Y.2d 965, 590 N.Y.S.2d 878, 605 N.E.2d 365). It is well settled that the statute does not apply to routine maintenance in a non-construction, non-renovation context (see, Phillips v. City of New York, 228 A.D.2d 570, 644 N.Y.S.2d 764; Howe v. 1660 Grand Is. Blvd., 209 A.D.2d 934, 619 N.Y.S.2d 227; Edwards v. Twenty-Four Twenty-Six Main St. Assocs....
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