Phillips v. City of New York

• Decision Date: 17 June 1996
• Citation: 644 N.Y.S.2d 764,228 A.D.2d 570
• Parties: Neil PHILLIPS, Appellant, v. CITY OF NEW YORK, Defendant Third-Party Plaintiff-Respondent, New York City Department of Sanitation, et al., Defendants-Respondents; Dag Dee Tool Rentals, Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 764

644 N.Y.S.2d 764

228 A.D.2d 570

Neil PHILLIPS, Appellant, v. CITY OF NEW YORK, Defendant Third-Party Plaintiff-Respondent New York City Department of Sanitation, et al., Defendants-Respondents Dag Dee Tool Rentals, Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

June 17, 1996.

Richard J. Cardali, P.C., New York City (DiJoseph, Portegello & Schuster [Arnold DiJoseph III], of counsel), for appellant.

Paul A. Crotty, Corporation Counsel, New York City (Francis F. Caputo and Joseph I. Lauer, of counsel), for defendant third-party plaintiff-respondent.

Jacobowitz, Garfinkel & Lesman, New York City (Fiedelman & Hoefling [Susan E. Lysaght], of counsel), for defendant-respondent Cross Bay Contracting Corp.

Schoeman, Marsh & Updike, New York City (Carolyn B. Stevens, of counsel), for third-party defendant-respondent.

Before ROSENBLATT, J.P., and THOMPSON, PIZZUTO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bernstein, J.), dated August 23, 1994, as granted those branches of the defendants' respective motions which were for summary judgment dismissing those causes of action of the complaint which were based on violations of Labor Law §§ 240(1) and 241(6), and denied his cross motion for summary judgment as to those causes of action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff, an employee of the third-party defendant, Dag Dee Tool Rentals, Inc., was injured while repairing a "loader" at a landfill owned by the defendant City of New York. The City had retained the defendant Cross Bay Contracting Corp. to manage and operate the landfill. The injury occurred when the blocks the plaintiff was using to support the "drop arm" of the loader, which was at approximately the same level as his shoulder, were dislodged, causing the drop arm to fall on his hand. The Supreme Court, inter alia, granted the defendants' respective motions which were for summary judgment dismissing those causes of action of the complaint which were based on Labor Law §§ 240(1) and 241(6). We affirm.

It is well settled that Labor Law § 240(1), which imposes absolute liability, "is addressed to situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling from an elevated worksite" (Rocovich v. Consolidated Edison Co., 167 A.D.2d 524, 526, 562 N.Y.S.2d 197, affd 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932). The statute was not designed to encompass the type of routine maintenance work performed by the plaintiff, which is "far removed from the risks associated with the construction or demolition of a building" (Manente v. Ropost, Inc., 136 A.D.2d 681, 682, 524 N.Y.S.2d 96), and that takes place "in a non-construction, non-renovation context" (Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592, 593, 601 N.Y.S.2d 11).

Furthermore, "[a]n object falling from a miniscule height is not the type of elevation-related injury that this statute was intended to protect against" (Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 658, 609 N.Y.S.2d 322; see also, Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134; Corsaro v. Mt. Calvary Cemetery, 214 A.D.2d 950, 626 N.Y.S.2d 634; Carringi v. International Paper Co., 184 A.D.2d 137, 140, 591 N.Y.S.2d 600). Here, the plaintiff was working at ground level on a piece of machinery which was also at ground level, and the drop arm that caused the injury fell, at most, from shoulder height to the level of the plaintiff's hand.

With respect to the cause of action pursuant to Labor Law § 241(6), the plaintiff was not engaged in "construction work", as defined by the industrial code (12 NYCRR 23-1.4[b][13], when he was injured (see, Mosher v. State of New York, 80 N.Y.2d 286, 590...