Panek v. County of Albany

• Decision Date: 01 April 2003
• Parties: ANDREW W. PANEK et al., Appellants, v. COUNTY OF ALBANY et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

99 N.Y.2d 452

788 N.E.2d 616

758 N.Y.S.2d 267

ANDREW W. PANEK et al., Appellants, v. COUNTY OF ALBANY et al., Respondents.

Court of Appeals of the State of New York.

Argued February 11, 2003.

Decided April 1, 2003.

Buckley, Mendleson & Criscione, P.C., Albany (John J. Criscione of counsel), for appellant.

Bond, Schoeneck & King, PLLC, Syracuse (John H. Callahan and Donald S. DiBenedetto of counsel), for respondents.

Jeffrey A. Lichtman, New York City, and Powers & Santola, LLP, Albany (Daniel R. Santola and Michael J. Hutter, Jr., of counsel), for New York State Trial Lawyers Association, amicus curiae.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and READ concur.

OPINION OF THE COURT

GRAFFEO, J.

Labor Law § 240 (1) protects workers from elevation-related hazards when they are injured while involved in certain enumerated work activities, including the demolition or alteration of a building or structure. In this appeal, we conclude that plaintiff was engaged in work activities that constituted an alteration of a building within the ambit of the statute, and he is therefore entitled to partial summary judgment on section 240 (1) liability.

Plaintiff Andrew W. Panek was an engineer technician employed by the Federal Aviation Administration (FAA) at the Albany International Airport. The FAA leased an air traffic control tower from defendant County of Albany Airport Authority, which operates the facility for defendant County of Albany. As part of a major renovation project at the airport, a new air traffic control tower was built and placed in service in February 1999. The Authority issued a contract for the demolition of the old tower, scheduled to begin in April 1999.

After commencing operations in the new tower, the FAA instructed plaintiff to remove two air handlers from the old tower's cooling system. The air handlers weighed approximately 200 pounds each and were affixed with bolts to an I-beam on the second-floor ceiling of the tower. To facilitate removal of the air handlers, plaintiff spent two days dismantling the cooling system. For the actual air handler detachment, plaintiff placed a lift beneath one handler and positioned the lift to elevate the handler and decrease the pressure on the bolts connected to the I-beam. Assisted by a coworker, plaintiff cranked the lift into the proper position. Then, plaintiff ascended an eight-foot fiberglass stepladder, owned by the FAA, in order to reach the bolts. From his stance about four feet up the ladder, plaintiff loosened one bolt at a time, descending and repositioning the ladder after each bolt. In this manner, the air handler would be released onto the lift and lowered to the floor.

On March 25, 1999, his third day of work on this project, plaintiff successfully removed the first handler and was disconnecting the second when he fell from the ladder. As he was falling, plaintiff grabbed a cable tray that was suspended from the ceiling. Plaintiff's coworker heard plaintiff yell and turned in time to see the ladder fall away, leaving plaintiff hanging from the cable tray. The cable tray collapsed and plaintiff fell, sustaining injuries.

Plaintiff brought this action against the County and the Authority alleging common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6), and his wife brought a derivative claim. At the close of discovery, plaintiff moved for partial summary judgment regarding section 240 (1) liability, arguing that he was involved in work incidental to the upcoming demolition of the old tower or, alternatively, that the removal of the air handlers constituted an alteration of the tower, either activity falling within the scope of the statute. In addition, plaintiff claimed that the ladder failed to provide him with proper protection because it was misplaced, unbalanced or inadequately secured. Defendants cross-moved for summary judgment dismissing all claims, urging that plaintiff's work was not encompassed within section 240 (1) protections because removal of the air handlers was not part of the separately-contracted future demolition project and that the salvaging of the air handlers did not constitute an alteration of the building.

Supreme Court granted plaintiff's motion and denied defendants' cross motion. Although it rejected plaintiff's demolition argument, the court concluded that plaintiff was engaged in an alteration activity at the time of his accident. The Appellate Division reversed and granted defendants' cross motion, dismissing the complaint. With respect to plaintiff's section 240 (1) cause of action, the Court agreed with Supreme Court that plaintiff was not engaged in demolition work, but found that plaintiff's work assignment did not constitute "altering." Reasoning that the statute necessarily contemplates the continued use of the building after completion of any enumerated activities, the Appellate Division held that the tower's scheduled demolition precluded a determination that plaintiff was engaged in an alteration activity, even if the removal of the air handler resulted in significant physical change to the building. We disagree with this rationale and therefore reverse.

Labor Law § 240 (1) provides, in relevant part:

"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, * * * and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

We have repeatedly observed that the purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves (see Martinez v City of New York, 93 NY2d 322, 325-326 [1999]

; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985],

rearg denied

65 NY2d 1054 [1985]). Consistent with this objective, the section imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty that proximately causes a plaintiff's injury. As a result, this strict liability provision "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 559 [1993]). The critical inquiry in determining coverage under the statute is "what type of work the plaintiff was performing at the time of injury" (Joblon v Solow, 91 NY2d 457, 465 [1998]...