Preston v. APCH, Inc.

• Decision Date: 22 August 2019
• Docket Number: 165,CA 18–01645
• Parties: Tracy PRESTON, as Administrator of the Estate of Eric S. Lehman, Deceased, Plaintiff–Respondent, v. APCH, INC., Alstom Power, Inc., Defendants–Appellants, and Combustion Engineering, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 850
107 N.Y.S.3d 515

Tracy PRESTON, as Administrator of the Estate of Eric S. Lehman, Deceased, Plaintiff–Respondent,
v.
APCH, INC., Alstom Power, Inc., Defendants–Appellants, and Combustion Engineering, Inc., Defendant.

165
CA 18–01645

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 22, 2019

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR DEFENDANTS–APPELLANTS AND DEFENDANT.

PULOS & ROSELL, LLP, HORNELL (WILLIAM W. PULOS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.

MEMORANDUM AND ORDER

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It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the cross motion is denied, the motion is granted and the amended complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for the wrongful death and conscious pain and suffering of plaintiff's decedent resulting from an accident that occurred while he was employed as a welder with defendant Alstom Power, Inc. (Alstom). Decedent and a coworker were assigned during the course of their employment to participate in the assembly of a rotor compartment weighing approximately five tons at an industrial facility in Wellsville, New York (plant) owned by defendant APCH, Inc. (APCH) (see Preston v. APCH, Inc. , 89 A.D.3d 65, 67–72, 930 N.Y.S.2d 722 [4th Dept. 2011] ). The rotor compartment was being assembled to fulfill Alstom's contract with a customer that owned and operated a power plant in Bow, New Hampshire for the replacement of certain components of the customer's air preheater. Decedent was positioned in front of the rotor compartment and was comparing his welding work with that of the coworker when the rotor compartment

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fell from its stands thereby pinning him to the floor and causing his death.

Following motion practice, the only cause of action remaining for our consideration is that alleging a violation of Labor Law § 240(1) against Alstom and APCH (defendants) inasmuch as plaintiff withdrew all other causes of action against those defendants and withdrew all causes of action against defendant Combustion Engineering, Inc. On this appeal, defendants contend that Supreme Court erred in denying their motion for summary judgment dismissing the amended complaint and granting plaintiff's cross motion for partial summary judgment on the issue of liability. We agree.

" Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute" ( Soto v. J. Crew Inc. , 21 N.Y.3d 562, 566, 976 N.Y.S.2d 421, 998 N.E.2d 1045 [2013] ). "To recover, the [worker] must have been engaged in a covered activity—‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ( Labor Law § 240[1] ; see Panek v. County of Albany, 99 N.Y.2d 452, 457, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003] )—and must have suffered an injury as ‘the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ( Runner v. New York Stock Exch., Inc. , 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] )" ( Soto , 21 N.Y.3d at 566, 976 N.Y.S.2d 421, 998 N.E.2d 1045 ). The issue presented in this appeal

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concerns the first question, i.e., whether decedent was engaged in a covered activity (see id. ).

Although " Labor Law § 240(1) is to be construed as liberally as necessary to accomplish the purpose of protecting workers" ( Wicks v. Trigen–Syracuse Energy Corp. , 64 A.D.3d 75, 78, 877 N.Y.S.2d 791 [4th Dept. 2009] ; see Martinez v. City of New York , 93 N.Y.2d 322, 325–326, 690 N.Y.S.2d 524, 712 N.E.2d 689 [1999] ), "the language of Labor Law § 240(1) ‘must not be strained’ to accomplish what the Legislature did not intend" ( Blake v. Neighborhood Hous. Servs. of N.Y. City , 1 N.Y.3d 280, 292, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003], quoting Martinez , 93 N.Y.2d at 326, 690 N.Y.S.2d 524, 712 N.E.2d 689 ; see Bish v. Odell Farms Partnership , 119 A.D.3d 1337, 1337–1338, 989 N.Y.S.2d 719 [4th Dept. 2014] ; Wicks , 64 A.D.3d at 79, 877 N.Y.S.2d 791 ; see generally Shannahan v. Empire Eng'g Corp. , 204 N.Y. 543, 548, 98 N.E. 9 [1912] ). "It is apparent from the text of Labor Law § 240(1), and its history confirms, that its central concern is the dangers that beset workers in the construction industry" ( Dahar v. Holland Ladder & Mfg. Co. , 18 N.Y.3d 521, 525, 941 N.Y.S.2d 31, 964 N.E.2d 402 [2012] ; see Soto , 21 N.Y.3d at 566, 976 N.Y.S.2d 421, 998 N.E.2d 1045 ). "[T]he purpose of the statute is to place ‘ultimate responsibility for safety practices at building construction jobs where such responsibility ... belongs’ " ( Dahar , 18 N.Y.3d at 525, 941 N.Y.S.2d 31, 964 N.E.2d 402 ). "While the reach of section 240(1) is not limited to work performed on actual construction sites" ( Martinez , 93 N.Y.2d at 326, 690 N.Y.S.2d 524, 712 N.E.2d 689 ; see Dahar , 18 N.Y.3d at 525, 941 N.Y.S.2d 31, 964 N.E.2d 402 ; Joblon v. Solow , 91 N.Y.2d 457, 464, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998] ), the statute does not extend so far as to cover a worker who performs "customary occupational work of fabricating" a component "during the normal manufacturing process" at a facility and is not involved in any construction project nor involved in renovation or alteration work

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on the facility ( Jock v. Fien , 80 N.Y.2d 965, 966, 968, 590 N.Y.S.2d 878, 605 N.E.2d 365 [1992] ; see Davis v. Wind–Sun Const., Inc. , 70 A.D.3d 1383, 1383, 894 N.Y.S.2d 621 [4th Dept. 2010] ; Solly v. Tam Ceramics, Inc. , 258 A.D.2d 914, 914, 685 N.Y.S.2d 374 [4th Dept. 1999] ; Foster v. Joseph Co. , 216 A.D.2d 944, 944–945, 629 N.Y.S.2d 149 [4th Dept. 1995] ; Warsaw v. Eastern Rock Prods. , 193 A.D.2d 1115, 1115, 599 N.Y.S.2d 207 [4th Dept. 1993] ; see generally Dahar , 18 N.Y.3d at 525–526, 941 N.Y.S.2d 31, 964 N.E.2d 402 ).

Here, defendants' submissions established that Alstom made air preheaters at the plant and was in the business of supplying various components, including rotor compartments, for air preheaters based on individual specifications of customers such as power plants, oil refineries, and chemical plants. Decedent was employed as a welder by Alstom at the plant. As was routine, decedent and the coworker were following the plans and specifications prepared by an Alstom engineer to fabricate the subject rotor compartment. The specifications showed, for example, where to apply welds, and a supervisor or Alstom inspector would explain how to remedy any issues such as

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missing welds. Inasmuch as Alstom's business was supplying components for air preheaters, welders such as decedent and the coworker regularly fabricated rotor compartments similar to the one that they were working on at the time of the accident. It is undisputed that the rotor compartment upon which decedent was working was one of several sections that would be loaded on a truck and transported from the plant in Wellsville, New York to the customer's power plant in Bow, New Hampshire where the air preheater would be assembled. We conclude that defendants thus established that decedent was not engaged in a covered activity under Labor Law § 240(1) inasmuch as he was performing his "customary occupational work of fabricating" and welding a rotor compartment "during the normal manufacturing process" at the plant in Wellsville, and was not involved in the construction project in New Hampshire nor involved in renovation or alteration work on the plant in Wellsville ( Jock , 80 N.Y.2d at 966, 968, 590 N.Y.S.2d 878, 605 N.E.2d 365 ; see Davis , 70 A.D.3d at 1383, 894 N.Y.S.2d 621 ; Solly , 258 A.D.2d at 914, 685 N.Y.S.2d 374 ; Foster , 216 A.D.2d at 944–945, 629 N.Y.S.2d 149 ; Warsaw , 193 A.D.2d at 1115, 599 N.Y.S.2d 207 ).

Plaintiff nonetheless contends, and the court agreed, that defendants failed to establish that the work in which decedent was engaged was part of a normal manufacturing process rather than part of a construction project. We reject that contention.

First, contrary to the suggestion of plaintiff, the court, and the dissent, while there is evidence that the rotor compartment upon which decedent was working was of a different style than those previously produced in terms of size, shape, and weight, the fact that decedent was fabricating a rotor compartment that was customized to the customer's specifications and not of universal or uniform design does not transform the nature of the work from fabrication during the normal manufacturing process to a covered activity as part of a construction project. After all, Alstom's business model was to supply various components, including rotor compartments, based on individual specifications of customers, and welders such as decedent routinely followed such specifications in fabricating and welding those air preheater components (see Davis , 70 A.D.3d at 1383, 894 N.Y.S.2d 621 ; see also Solly ,...