Ramos v. Marksue Realty Corp., 83 Civ. 3498 (LBS).
Decision Date | 26 April 1984 |
Docket Number | No. 83 Civ. 3498 (LBS).,83 Civ. 3498 (LBS). |
Citation | 586 F. Supp. 488 |
Parties | Andres RAMOS and Lisa McAdams, Plaintiffs, v. MARKSUE REALTY CORPORATION, Miltrose Realty Corporation, and David Kuperberg, Defendants. |
Court | U.S. District Court — Southern District of New York |
Addabbo, Greenberg, D'Errico & Caputo, Garden City, for plaintiffs; Frank N. D'Errico, Garden City, N.Y., of counsel.
Howard S. Davis, New York City, for defendants; A. Neil Tolciss, Brooklyn, N.Y., of counsel.
This is a personal injury action based upon diversity jurisdiction under 28 U.S.C. § 1332. Plaintiffs are domiciliaries of the State of New Jersey and defendants Marksue Realty Corporation ("Marksue") and Miltrose Realty Corporation ("Miltrose") are domestic corporations organized under the laws of the State of New York. Defendant David Kuperberg is a domiciliary of the State of New York as well.
It is undisputed that on October 1, 1983, plaintiff Ramos, while washing windows in the stairway of a five story apartment building in Manhattan, slipped and fell off the third floor ledge. Plaintiff now seeks damages for the injuries he suffered. He has sued Marksue and Miltrose as corporate owners of the building in question and Kuperberg in his capacity as both co-owner and manager of that building.
In his first count, Ramos alleges that defendants have violated Section 240 of the Labor Law of the State of New York and seeks $1,500,000 damages plus costs for the injuries he claims to have suffered because of the alleged violation. In his second count, Ramos seeks $1,500,000 as a result of the alleged negligence, carelessness and recklessness of defendant, resulting in the accident. As a third count, plaintiff Lisa McAdams sues for $500,000 damages plus costs for the loss of services, companionship, and consortium of her husband Ramos, allegedly caused by the conduct of the defendants. Defendants have moved for partial summary judgment dismissing plaintiff's first cause of action. For the reasons that follow, we deny this motion.
The parties disagree as to which section of the New York Labor Law is controlling. Plaintiffs urge that Section 240, entitled "Scaffolding and other devices for use of employees" is the applicable statute. Defendants, on the other hand, contend that Section 202, entitled, "Protection of the public and of persons engaged at window cleaning and cleaning of interior surfaces of buildings" is controlling.
As a federal court sitting in diversity, we must, of course, construe the New York Labor Law in a manner consonant with New York State court interpretations of the statute. Section 240 of the Labor Law, aimed at protecting workmen engaged in dangerous employment, has consistently received a liberal construction by the New York courts. These liberal interpretations, coupled with recent state legislative amendments to Section 240 designed to broaden the scope of the statute, lead us to conclude that plaintiff Ramos is protected by Section 240.
Section 240 provides, in pertinent part:
N.Y.Lab.Law § 240 (McKinney 1965 & Supp.1984). Other subdivisions of Section 240 give requirements for ladders, scaffolds and other devices provided for employees' use.
New York courts have long imposed absolute liability for violations of Section 240. See, e.g., Pereira v. A.D. Herman Construction Co., 74 A.D.2d 531, 425 N.Y.S.2d 308 (1st Dept.1980); Long v. Murnane Associates, 68 A.D.2d 166, 416 N.Y.S.2d 413 (3d Dept.1979); Tully v. Roosevelt Properties, Inc., 34 A.D.2d 786, 787, 311 N.Y.S.2d 41, 43 (2d Dept.1970).
First, we note that "cleaning ... of a building or structure" is encompassed by the plain terms of the statute. Although the type of periodic window cleaning in which plaintiff Ramos was engaged is not an activity specifically enumerated in Section 240, this does not prevent its inclusion by implication. In point is Katz v. Press Management Corp., 117 Misc.2d 870, 459 N.Y.S.2d 383 (Sup.Ct.1983), where the Court determined in a question of first impression, that a wallpaper hanger, injured when his ladder collapsed, was a member of the class protected under Section 240.
The Court so held, despite the fact that wallpaper hanging is nowhere mentioned in Section 240. The Court remarked that the Legislature, instead of intending to protect solely those employed in the particular types of work enumerated in the statute, sought to protect those engaged in a general class of work involving the use of scaffolds and ladders. Katz, 117 Misc.2d at 872, 459 N.Y.S.2d at 385.
53 A.D.2d at 751, 384 N.Y.S.2d at 523. See also Struble v. John Arborio, Inc., 74 A.D.2d 55, 57, 426 N.Y.S.2d 592, 593 (3d Dept.1980) ( ).1
The legislative history of the current version of Section 240 also supports a liberal interpretation of the provision. Prior to 1969, Section 240 placed liability for its violation upon "A person employing or directing another to perform labor" (emphasis supplied). In 1969, however, the Legislature amended that Section to place liability upon "All contractors and owners and their agents," with a narrow exception not relevant here. Thus, under Section 240 as amended, the owner of a building can be subject to liability even though he neither employs nor directs the activities of the injured party. Haimes v. New York Telephone Co., 46 N.Y.2d 132, 136, 412 N.Y. S.2d 863, 865, 385 N.E.2d 601, 604 (1978). In so amending Section 240, the Legislature emphasized the broad scope and purpose of the amended statute. See N.Y. Legis.Ann., 1969, p. 407.
In light of these positions taken by the New York courts and Legislature, the fundamental issue in this case appears to be not whether window cleaning is specifically mentioned in Section 240, but instead whether Ramos belonged to that class of workmen employed to use any of the dangerous equipment catalogued in Section 240, i.e., scaffolds, hoists, ladders, etc. We find Ramos, who at the time of his accident was employed in an activity which, by definition, involves the use of the dangerous equipment enumerated above, to be a member of the class the statute was intended to protect.
Despite the plain language of Section 240, its broad remedial purpose, and the courts' liberal interpretations of the Section, defendants contend that this Section should not be applied to the window cleaning involved here because of the existence of Section 202 of the Labor Law, entitled "Protection of the public and of persons engaged at window cleaning and cleaning of exterior surfaces of buildings." This Section provides, in pertinent part:
N.Y.Lab.Law § 202 (McKinney 1965 & Supp.1984).
Defendants argue that the existence of Section 202, which specifically applies to "window cleaning," precludes plaintiff Ramos from relying on Section 240. We reject this...
To continue reading
Request your trial-
Williamson v. 16 West 57th St. Co.
...Assn. of Washington Hgts., 168 A.D.2d 399, 563 N.Y.S.2d 408, affd. 78 N.Y.2d 978, 574 N.Y.S.2d 935, 580 N.E.2d 407; Ramos v. Marksue Realty Corp., 586 F.Supp. 488; Orsono v. AD 1619 Co., NYLJ, Nov. 6, 1995, at 29, col. 6; see also, Retamal v. Miriam Osborne Mem. Home Assoc., --- A.D.2d ----......
-
Videotronics, Inc. v. Bend Electronics
... ... CV-R-83-310-ECR ... United States District Court, D ... v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977); Atari, ... ...
-
Renn v. Airline of Finland
...e.g., Haimes v. New York Telephone Co., 46 N.Y.2d 132, 136, 412 N.Y.S.2d 863, 865, 385 N.E.2d 601, 603 (1978); Ramos v. Marksue Realty Corp., 586 F.Supp. 488, 490 (S.D.N. Y.1984). Although the legislature adopted § 240(1) to protect workers, a court cannot justify imposing liability on thos......
-
Rooney v. Port Auth. of New York and New Jersey
...See Terry v. Young Men's Hebrew Association of Washington Heights (1st Dept.1990) 168 A.D.2d 399, 563 N.Y.S.2d 408; Ramos v. Marksue (S.D.N.Y.1984) 586 F.Supp. 488 (both involving window washing); Carr v. Jacob Perl Associates (1st Dept.1994) 201 A.D.2d 296, 607 N.Y.S.2d 301 (elevator repai......