Prats v. Port Auth. of NY & NJ

• Decision Date: 21 October 2003
• Citation: 768 N.Y.S.2d 178,100 N.Y.2d 878,800 N.E.2d 351
• Parties: NORBERTO PRATS et al., Appellants, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Respondent.
• Court: New York Court of Appeals Court of Appeals

100 N.Y.2d 878

800 N.E.2d 351

768 N.Y.S.2d 178

NORBERTO PRATS et al., Appellants, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Respondent.

Court of Appeals of the State of New York.

Argued September 9, 2003.

Decided October 21, 2003.

DiJoseph & Portegello, P.C., New York City (Arnold E. DiJoseph, III, of counsel), and Parker & Waichman, Great Neck, for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Richard E. Lerner, Helmut Beron and Meredith Drucker of counsel), for respondent.

Chief Judge KAYE and Judges SMITH, CIPARICK, GRAFFEO and READ concur.

OPINION OF THE COURT

ROSENBLATT, J.

In this Labor Law § 240 (1) case, plaintiff sustained injuries after falling from a ladder. At the time, he was an assistant mechanic for AWL Industries, a company that contracted with defendant Port Authority of New York and New Jersey to work on air-conditioning systems at the World Trade Center complex. AWL's contract involved cleaning, repairing and rehabilitating air handling units, including supports, anchors and piping in several buildings. The agreement provided that AWL, as contractor, was obligated to ascertain "the extent of all construction" related to the project and to satisfy Port Authority's inspection standards. Some of the air handling units measured 20 by 20 feet and were built into the wall. Accordingly, the contract required AWL to level floors, lay concrete and rebuild walls to replace large air filtering systems.

As an assistant mechanic, plaintiff worked on overhauling air-conditioning systems, and on return and exhaust units. He also assisted a more senior mechanic in changing bearings, motor sheaves and flywheels. His specific tasks varied as he received each day's assignments when signing in for work. On the day of the injury, plaintiff and coworker Bob Card were readying air handling units for inspection, using tools (wrenches, a welder set and "Craftsman-type" tools) to perform any work that had to be done. Card set up a ladder to inspect an air-conditioning return fan about eight feet tall, suspended at a height of approximately 20 feet. Plaintiff held the ladder while Card climbed up and onto the unit. Card then asked plaintiff to give him a wrench, and plaintiff began to climb the ladder. When he was about 15 feet off the ground, the ladder slid out from under him, and he fell. The ladder bounced off the floor and hit plaintiff in the face before he fell to the ground.

Plaintiff and his wife sued the Port Authority in United States District Court for the Southern District of New York, alleging a violation of New York Labor Law § 240 (1). The District Court granted defendant summary judgment on the section 240 (1) claim. Plaintiff appealed to the Second Circuit, which certified to us the question "whether the conduct at issue in this action, inspections of construction work, fell within the purview of New York Labor Law § 240 (1)." We accepted certification (99 NY2d 578 [2003]) and now answer the question in the affirmative.¹

Labor Law § 240 (1) provides special protection to those engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Citing the language of the statute, defendant makes two arguments. First, defendant contends that "inspection" is not an enumerated activity and second, that plaintiff's inspection involved no more than routine maintenance. Plaintiff, on the other hand, asserts that the inspection was performed in the context of "altering" the building. We address these contentions in turn.

In asserting that the inspection falls outside of section 240, defendant relies principally on Martinez v City of New York (93 NY2d 322 [1999]). There, an inspector suffered an injury while checking for asbestos in schools. The inspection was the prelude to an asbestos removal project. The purpose of the examination was to determine whether conditions warranted removal work, and inspection was to end before any asbestos removal would begin. The City employed one contractor to carry out the inspection and another to do the removal. We held that the "merely investigatory" inspection phase fell outside section 240 (1) (id. at 326). The Court emphasized that the separate, sequential phases involved different employees working for different contractors. Under these circumstances, we held the inspections too remote from any covered work to fall within the statute's ambit.

Unlike Martinez, the work here did not fall into a separate phase easily distinguishable from other parts of the larger construction project. Plaintiff's inspection was not in anticipation of AWL's work, nor did it take place after the work was done. The inspections were ongoing and contemporaneous with the other work that formed part of a single contract. The employees who conducted inspections also performed other, more labor-intense aspects of the project. Moreover, plaintiff worked for a company that was carrying out a contract requiring construction and alteration—activities covered by section 240 (1). This contrasts with the asbestos inspector in Martinez, who did not work for the company that would actually remove the asbestos.

In certifying this case to our Court, the Second Circuit questioned whether Joblon v Solow (91 NY2d 457, 465 [1998]) bars plaintiff's recovery. There, we looked to the "time of injury" to determine whether plaintiff's work fell within section 240 (1). Defendant would have us read that phrase in an overly literal manner. In our view, however, the words must be applied in context. At one extreme, a construction worker who, between hammer strokes, pauses to see where to hit the next nail is at that moment "inspecting." But this is very different from an inspection conducted by someone carrying a clipboard while surveying a possible construction site long before a contractor puts a spade in the ground. Here, AWL employed the plaintiff mechanic substantially to perform work that involved alteration of a building, and, under the facts of this case, he enjoyed the protection of section 240 (1) even though he was inspecting, or more precisely, climbing a ladder, at the moment of the accident.

While we have held that job titles are not dispositive (see Joblon, 91 NY2d at 465-466

), the facts support the conclusion that plaintiff—while working as a mechanic—undertook the kind of work the Legislature intended to protect under section 240 (1). Although at the instant of the injury he was inspecting and putting the finishing touches on what he had altered, he had done heavier alteration work on other days at the...