Munoz v. Djz Realty, LLC
| Decision Date | 07 February 2005 |
| Docket Number | 2004-00693. |
| Citation | 789 N.Y.S.2d 526,15 A.D.3d 363,2005 NY Slip Op 00991 |
| Parties | LARRY MUNOZ, Appellant, et al., Plaintiff, v. DJZ REALTY, LLC, Defendant and Third-Party Plaintiff-Respondent. ELLER MEDIA, Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing the cause of action pursuant to Labor Law § 240 (1) and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The appellant fell from a ladder as he was attempting to install a new poster over the face of a 12-foot by 24-foot billboard on the roof of the defendant's building. To reach the billboard, the appellant had to climb up a 28-foot ladder to the roof of the building, and from the roof, climb up a 14-foot ladder to a platform which ran the length of the billboard. The poster to be attached to the billboard was in three sections. If the paper broke while being installed, the appellant would have to scrape or pull off the pieces that were flagging.
As the appellant reached the roof 28 feet above ground level and attempted to set down his materials, he claims the ladder slid to the left and he fell to the ground. At issue here is whether the appellant was protected by Labor Law § 240 (1) which applies to elevation-related hazards incurred in "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."
As the Court of Appeals noted in Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280, 284-285) the purpose of Labor Law § 240 (1) is to protect workers from the dangers of working "at heights." Labor Law § 240 (1) is to be construed liberally to accomplish its legislative purpose which is the "protection of persons in gaining access to or working at sites where elevation poses a risk" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).
In Joblon v Solow (91 NY2d 457, 463 [1998]), the Court of Appeals noted that "definition of particular terms within the statute continues to proliferate litigation" and "inconsistent results." The term "structure" has been defined by the Court of Appeals as "any production or piece of work artificially built up or composed of parts joined together in some definite manner" (Caddy v Interborough Rapid Tr. Co., 195 NY 415, 420 [1909]; see Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943 [1991]). The billboard in issue could be considered a structure (see Smith v Shell Oil Co., 85 NY2d 1000 [1995]; Lynch v City of New York, 209 AD2d 590 [1994]) or part of the building to which it was annexed (see Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813 [1987]; Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200 [2002]). In either case it is covered by Labor Law § 240 (1).
In Joblon v Solow (supra at 464-465) the Court of Appeals rejected suggested "bright-line" rules for defining the type of work to which Labor Law § 240 (1) applied in favor of a rule which would exclude "simple, routine activities" from the scope of the statute while "implement[ing] the legislative purpose of providing protection for workers." The term "altering" was defined as "making a significant physical change to the configuration or composition of the building or structure" as distinguished from "routine maintenance and decorative modifications" (Joblon v Solow, supra at 465).
In the order appealed from (see Munoz v DJZ Realty, 2 Misc 3d 627 [2003]), the Supreme Court granted that branch of the defendant's motion which was for summary judgment dismissing the appellant's cause of action pursuant to Labor Law § 240 (1), holding that, as a matter of law, the appellant's intended activity on the day of the accident did not constitute "altering" within the meaning of Labor Law § 240 (1), citing Joblon v Solow (supra) and LaFontaine v Albany Mgt. (257 AD2d 319 [1999]). The Appellate Division, Third Department, held in LaFontaine v Albany Mgt. (supra) that "wallpapering" an apartment was not covered by Labor Law § 240 (1) on the ground that "wallpapering" was not mentioned therein. The Supreme Court further found that the decision of this Court in Gonzalez v City of New York (269 AD2d 493 [2000]) "does not compel a contrary result."
In Gonzalez v City of New York (supra at 494) the injured plaintiff was injured when he fell from a ladder while "gluing portions of a billboard advertisement which had begun to peel." This Court reinstated his cause of action pursuant to Labor Law § 240 (1) on the ground that the defendant failed to establish, as a matter of law, that the injured plaintiff was engaged in routine maintenance of the billboard as distinguished from a "repair." Similarly, the defendant in the instant case failed to establish, as a matter of law, that gluing a new bill on a billboard constituted routine maintenance as distinguished from an alteration within the meaning of Labor Law § 240 (1).
The question of whether an activity is routine maintenance not covered by Labor Law § 240 (1) as distinguished from a repair or alteration covered by Labor Law § 240 (1) is a question of degree which must be considered in light of the legislative purpose to protect against "risks related to elevation differentials" (Rocovich v Consolidated Edison Co., supra at 514). Standing on a step ladder to perform the periodic replacement of a plastic sign in a sign holder constitutes routine maintenance (see Cook v Parish Land Co., 239 AD2d 956 [1997]). Similarly, standing on an eight-foot ladder to replace a light bulb on an illuminated sign constitutes routine maintenance (see Smith v Shell Oil Co., 85 NY2d 1000 [1995], supra). However, replacement of a defective light fixture on a light pole 25- to 27-feet high constitutes a repair or alteration since the work involves "more than routine maintenance" (Cook v Presbyterian Homes of W. N.Y., 234 AD2d 906, 907 [1996]).
In an analogous situation, this Court has held that affixing a sign on the face of a building 18 feet above ground level constitutes an alteration covered by Labor Law § 240 (1) (see Buckley v Radovich, 211 AD2d 652 [1995]; accord Vasquez v Skyline Constr. & Restoration Corp., 8 AD3d 473 [2004]; Lawyer v Rotterdam Ventures, 204 AD2d 878 [1994]). In Lawyer v Rotterdam Ventures (supra at 879) the Appellate Division, Third Department, determined that there was "little question" that the plaintiff's "activity at the time of the accident . . . is the type of work contemplated by Labor Law § 240 (1)" on the ground that "[t]he underlying facts show the scenario to be one particularly subject to the risks inherent in an elevated work site."
The activity of wallpapering an apartment, at issue in LaFontaine v Albany Mgt. (supra), is more properly characterized as routine maintenance and is not comparable to the activity engaged in here. It should be noted that the Court of Appeals has indicated that Labor Law § 240 (1) should not be applied to interior "domestic" activities (see Connors v Boorstein, 4 NY2d 172, 175 [1958]; Rivers v Sauter, 26 NY2d 260 [1970]). In Connors v Boorstein (supra), the Court of Appeals held that "cleaning" a storm window in a residential premises was not covered by Labor Law § 240 (1) notwithstanding the fact that "cleaning" was one of the enumerated activities in Labor Law § 240 (1). In Rivers v Sauter (supra at 263) the Court of Appeals noted that the "painting of the outside of a house" is covered by Labor Law § 240 (1) since the holding in Connors v Boorstein (supra) "should apply only to truly domestic situations." Similarly, in the instant case, application of a poster to a billboard in an exterior setting 14 feet above the roof of a building 28-feet tall is distinguishable from wallpapering an apartment wall.
The appellant's remaining contentions are without merit (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003], supra; Blair v Rosen-Michaels, Inc., 146 AD2d 863 [1989]).
We note that no notice of appeal was filed on behalf of the plaintiff Elizabeth Munoz or the defendant third-party plaintiff DJZ Realty, LLC. Further, the issues raised by the third-party defendant relating to the merits of the third-party complaint are not properly before this Court.
H. Miller, J.P., dissents, and votes to affirm the order insofar as appealed from, with the following memorandum in which Crane, J., concurs: The injured plaintiff was employed by an outdoor advertising company to install advertising on the company's billboards. On the average, he installed eight billboards per day and each job took about one hour. At the time of his accident, he was about to place a prepasted paper advertisement on a billboard. The job would have been one of eight he was scheduled to do that day. The tools he would have used to make the installation, in addition to ladders, consisted of a pair of gloves and a 20-inch brush. The advertisement was broken down into a number of sheets and the installation would have entailed affixing the sheets onto the face of the billboard one by one, and then brushing each one out as the work progressed. He had done work at the same site 14 times, perhaps more, in the year prior to his accident, always working alone at that location.
It is true that Labor Law...
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