Salzler v. New York Telephone Co.

• Decision Date: 14 April 1993
• Citation: 596 N.Y.S.2d 263,192 A.D.2d 1104
• Parties: Richard SALZLER and Linda Salzler, Respondents, v. NEW YORK TELEPHONE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

596 N.Y.S.2d 263

192 A.D.2d 1104

Richard SALZLER and Linda Salzler, Respondents, v. NEW YORK TELEPHONE COMPANY, Appellant.

Supreme Court, Appellate Division Fourth Department.

April 14, 1993.

Phillips, Lytle, Hitchcock, Blaine & Huber by Paul Morrisson-Taylor, Buffalo, for appellant and third-party plaintiff.

Lewis & Lewis, P.C. by Michael Skoney, Buffalo, for respondents.

Before CALLAHAN, J.P., and GREEN, FALLON, BOOMER and BOEHM, JJ.

MEMORANDUM:

Working from an aerial basket mounted on a truck owned by the Village of Arcade (Village), Richard Salzler (plaintiff), a Village employee, installed a replacement transformer on a utility pole jointly owned by the Village and New York Telephone Company (defendant). After completing his work, plaintiff lowered the basket to its cradle on the truck and unbuckled his safety belt. Before plaintiff could dismount, a co-worker retracted the truck's outriggers, destabilizing it. The truck's emergency brake was defective, and the truck rolled downhill, colliding with another Village truck parked nearby. Plaintiff was thrown 12 feet to the ground and sustained injuries to his cervical spine.

Supreme Court properly granted plaintiff partial summary judgment on his Labor Law § 240(1) cause of action. Plaintiff was injured immediately after installing a transformer on a utility pole, which is a structure within the meaning of the statute (see, Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434; Dedario v. New York Tel. Co., 162 A.D.2d 1001, 1002-1003, 557 N.Y.S.2d 794). Defendant, an owner of the pole, had a nondelegable duty to provide plaintiff with proper safety devices to protect him from the hazard of injury "in circumstances where there are risks related to elevation differentials" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932; see also, Staples v. Town of Amherst, 146 A.D.2d 292, 540 N.Y.S.2d 926; Heath v. Soloff Constr., 107 A.D.2d 507, 487 N.Y.S.2d 617). The aerial basket truck was the functional equivalent of a ladder (see, Drew v. Correct Mfg. Corp., Hughes-Keenan Div., 149 A.D.2d 893, 894, 540 N.Y.S.2d 575; see also, Koumianos v. State of New York, 141 A.D.2d 189, 191, 534 N.Y.S.2d 512; Kennedy v. McKay, 86 A.D.2d 597, 598, 446 N.Y.S.2d 124) and, therefore, was required to be "so constructed, placed and operated as to give proper protection" (Labor Law § 240[1]. Its defective brakes resulted in a failure to protect plaintiff from injury, making defendant absolutely liable under Labor Law § 240(1) for not providing a safety device that provided proper protection (see, Drew v. Correct Mfg. Corp., Hughes-Keenan Div., supra; see also, Harmon v. Sager, 106 A.D.2d 704, 705-706, 483 N.Y.S.2d 751). Alleged negligence of a co-worker in lifting the outriggers prematurely is no defense to liability (see, Klien v. General Foods Corp., 148 A.D.2d 968, 539 N.Y.S.2d 604).

We reject defendant's contention that Supreme Court should have dismissed plaintiff's Labor Law § 241(6) cause of action. Plaintiff's injuries were sustained in construction work, and his remedy comes within the purview of that section (see, Dedario v. New York Tel. Co., supra, 162 A.D.2d at 1003, 557 N.Y.S.2d 794; see also, Mosher v. State of New York, 80 N.Y.2d 286, 590 N.Y.S.2d 53, 604 N.E.2d 115). Defendant's lack of supervision or control of the work does not immunize it from liability (see, Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548; Da Bolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503, appeal dismissed 60 N.Y.2d 554, 701, 467 N.Y.S.2d 1029, 454 N.E.2d 1318).

Supreme Court, however, should have granted defendant's motion to dismiss the causes of action for common-law negligence and violation of Labor Law § 200. It is uncontroverted that defendant lacked supervisory control over plaintiff's work. Defendant...