Martinez v. City of New York

• Decision Date: 13 May 1999
• Citation: 712 N.E.2d 689,690 N.Y.S.2d 524,93 N.Y.2d 322
• Parties: WALFREDO MARTINEZ et al., Appellants, v. CITY OF NEW YORK et al., Respondents, and KASELAAN & D'ANGELO, Defendant and Third-Party Plaintiff. L.J. GONZER ASSOCIATES, Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

93 N.Y.2d 322

712 N.E.2d 689

690 N.Y.S.2d 524

WALFREDO MARTINEZ et al., Appellants, v. CITY OF NEW YORK et al., Respondents, and KASELAAN & D'ANGELO, Defendant and Third-Party Plaintiff. L.J. GONZER ASSOCIATES, Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Argued and submitted March 20, 1999.

Decided May 13, 1999.

Mahler, Miller, Harris & Engel, P. C., Kew Gardens (Andrew M. Engel of counsel), for appellants.

Michael D. Hess, Corporation Counsel of New York City (Susan Choi-Hausman and Barry P. Schwartz of counsel), for respondents.

Agoglia, Fassberg, Holland & Crowe, P. C., Mineola (E. Kevin Agoglia of counsel), for third-party defendant-respondent.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE and WESLEY concur; Judge ROSENBLATT taking no part.

OPINION OF THE COURT

CIPARICK, J.

Plaintiff was injured when he fell from a height while performing asbestos inspection work in a school building owned by defendant City of New York and operated by the New York City Board of Education. We must decide whether the work in which plaintiff was engaged when he was injured fell within the ambit of Labor Law § 240 (1). We hold that it did not.

Plaintiff Walfredo Martinez was hired in August 1993 as an "environmental inspector" by third-party defendant L.J. Gonzer Associates, a placement agency, and was assigned to work for defendant/third-party plaintiff Kaselaan & D'Angelo Associates. Kaselaan had contracted with the New York City School Construction Authority to provide asbestos inspection services during phase one of "Operation Clean House," a two-phase project to identify and remove asbestos from New York City public schools. Phase one, the "Project Design" phase, entailed the inspection of school buildings and the identification of asbestos problem areas; the actual cleaning and removal work would be performed only during phase two, the "Abatement Phase." Thus, Kaselaan's sole role during phase one was to locate, identify and catalog asbestos in the school buildings and mark it for removal.

Plaintiff's duties were to determine whether asbestos samples had been previously taken, check areas marked as containing asbestos and measure areas where asbestos was found. On September 17, 1993, plaintiff was sent to visually inspect and take measurements at P.S. 85, in Queens. At the time of the accident, plaintiff was attempting to measure an insulation-covered pipe which ran from the ceiling to the top of a large closet approximately eight or nine feet tall. In an effort to reach the pipe, plaintiff and another inspector moved a desk against the closet. Plaintiff then climbed onto the desk and grasped the top of the closet in an attempt to lift himself higher. While doing so, he fell and was injured.

Plaintiff and his wife then commenced this action asserting causes of action including common-law negligence and violation of Labor Law § 240 (1). As pertinent here, plaintiff moved for partial summary judgment, on the issue of liability under Labor Law § 240 (1), alleging that defendants failed to provide him with a safety device, such as a ladder, on the day of the accident. The municipal defendants cross-moved for dismissal of the complaint for failure to state a cause of action or summary judgment.

Supreme Court denied plaintiff's motion for summary judgment and granted defendants' cross motions. With respect to the municipal defendants, the court held that the inspection work performed by plaintiff, even though entailing some height-related risk, was not the kind of elevation-related work contemplated by Labor Law § 240 (1). By a divided vote, the Appellate Division affirmed. The majority noted that plaintiff's job was limited to inspection for asbestos in preparation for subsequent asbestos removal, which, if required, would be performed by an entity other than Kaselaan or Gonzer. The majority thus reasoned that plaintiff's inspection work was "clearly not integral to the job of removing asbestos," and so was not within the purview of Labor Law § 240 (1) (252 AD2d 545, 546). The dissenting Justices contended that plaintiff's inspection work was "an integral and necessary part of a project that was within the purview of Labor Law § 240 (1) (252 AD2d, at 546-547). This appeal comes before us as of right based on the two-Judge dissent (CPLR 5601 [a]), and we now affirm.

Section 240 (1) of the Labor Law requires all contractors and property owners and their agents:

"in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [to] 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."

The statute is thus designed to minimize injuries to employees by placing ultimate responsibility for safety...