Sanatass v. Consolidated Investing Co.

• Decision Date: 24 April 2008
• Docket Number: No. 60.,60.
• Parties: Christopher SANATASS et al., Appellants, v. CONSOLIDATED INVESTING COMPANY, INC., et al., Respondents, et al., Defendants. (And a Third-Party Action.)
• Court: New York Court of Appeals Court of Appeals

887 N.E.2d 1125

10 N.Y.3d 333

Christopher SANATASS et al., Appellants, v. CONSOLIDATED INVESTING COMPANY, INC., et al., Respondents et al., Defendants (And a Third-Party Action.)

No. 60.

Court of Appeals of New York.

April 24, 2008.

Giuffré & Kaplan, P.C., Hicksville (Susan R. Nudelman and Steven Kaplan of counsel), for appellants.

Goldberg & Carlton, PLLC, New York City (Michael S. Leyden of counsel), for respondents.

Stewart G. Milch, New York City, for New York State Trial Lawyers Association, amicus curiae.

OPINION OF THE COURT

GRAFFEO, J.

On this appeal, we conclude that a property owner is liable for a violation of Labor Law § 240(1) that proximately caused injury to a worker even though a tenant of the building contracted for the work without the owner's knowledge. We therefore reverse the order of the Appellate Division and grant plaintiffs partial summary judgment.

Defendant Consolidated Investing Company owned a commercial building located at 423 West 55th Street in Manhattan. C2 Media, LLC occupied the 11th floor of the building under a lease assignment from the original tenant, Chroma Copy International.¹ C2 Media agreed to abide by the terms of Chroma's lease, including a provision that the "[t]enant shall make no changes in or to the demised premises of any nature without Owner's prior written consent." In addition, a rider to the lease stated that "[a]ll renovations, decorations, additions, installations, improvements and or alterations of any kind or nature in the Demised Premises ... shall require the prior written consent of Landlord." The lease also contained an indemnification clause in favor of Consolidated and obligated the tenant to obtain comprehensive liability insurance coverage naming Consolidated as an additional insured.

In January 2000, plaintiff Christopher Sanatass, a mechanic employed by JM Haley Corporation, was directed to install a commercial air conditioning unit for C2 Media, which had hired JM Haley without notifying Consolidated. Upon arriving at the work site, plaintiff installed air conditioning ducts and drilled holes into the 10-foot-high ceiling to affix rods designed to hold the 1,500-to-2,500-pound commercial unit. When plaintiff and a coworker hoisted the air conditioning unit about seven feet off the ground, one of the manual material lifts failed, causing the unit to drop and knock plaintiff to the floor. Plaintiff sustained injuries when the unit nearly crushed him.

Plaintiff and his wife, suing derivatively, commenced this action against, among others, Consolidated and Chroma, alleging violations of Labor Law § 240(1) and § 241(6). Consolidated cross-claimed against Chroma and brought a third-party action against Chroma and C2 Media seeking contribution and indemnification. Consolidated and plaintiff each moved for summary judgment. In support of his motion, plaintiff offered the affidavit of a licenced professional engineer, who concluded that the two portable lifts used to hoist the air conditioning unit were inadequate and failed because they had a lift capacity of only 1,000 pounds.

Supreme Court granted Consolidated's motion and dismissed the complaint as against it. The Appellate Division, with two Justices dissenting, affirmed, reasoning that under Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 781 N.Y.S.2d 477, 814 N.E.2d 784 (2004) Consolidated was not liable "because the air conditioning installation was performed without its consent and in violation of the lease" (38 A.D.3d 332, 332, 833 N.Y.S.2d 12 [2007]).² Plaintiff appeals as of right to this Court pursuant to CPLR 5601(a).

At the outset, Consolidated does not dispute that plaintiff was not afforded proper safety devices or that his injuries were proximately caused by the inadequate lifts. It nevertheless contends that our Court can resolve this case on a threshold issue by concluding that plaintiff's work did not constitute an alteration and, therefore, plaintiff was not engaged in an activity protected by Labor Law § 240(1). We address this question first.

It is now settled that the term "altering" as used in section 240(1) "requires making a significant physical change to the configuration or composition of the building or structure" (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998]). Conversely, an alteration "does not encompass simple, routine activities such as maintenance and decorative modifications" (Panek v. County of Albany, 99 N.Y.2d 452, 458, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003]).

To illustrate, in Joblon we determined that the plaintiff electrician's installation of an electric wall clock, which required chiseling a hole in a concrete wall to extend electrical wiring from an adjoining room, was "significant enough" to come within the statute (91 N.Y.2d at 465, 672 N.Y.S.2d 286, 695 N.E.2d 237). Similarly, in Panek, the removal of a pair of 200-pound air handlers, requiring preparatory work consisting of the dismantling of a number of components of the cooling system and involving the use of a mechanical lift, constituted a significant change as a matter of law (99 N.Y.2d at 458, 758 N.Y.S.2d 267, 788 N.E.2d 616).

Here, plaintiff drilled holes and affixed metal rods into the ceiling and installed air conditioning ducts as preparatory work. He then attempted to install a 1,500-to-2,500-pound air conditioning unit using two portable manual material lifts, at which point he sustained injuries as a result of an elevation-related hazard — a falling object. This work comfortably satisfies the alteration standard set by Joblon and Panek as a matter of law. We now turn to the issue that divided the Appellate Division.

Plaintiff argues that Consolidated is an "owner" within the meaning of Labor Law § 240(1) and that Consolidated is liable for a statutory violation despite its lack of notice or control over the work. Consolidated counters that the courts below correctly applied Abbatiello in holding that an out-of-possession owner who has no knowledge of the work being done on its premises cannot be held liable under section 240(1). Relying on the lease provision obligating the tenant to obtain the owner's permission before hiring a contractor to perform any alterations, Consolidated asserts that the tenant's breach severed any nexus between itself and plaintiff.

Labor Law § 240(1), commonly referred to as the "scaffold law," provides, in relevant part:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

In 1969, the Legislature expanded the scope of responsible parties from persons "employing or directing another to perform labor" to "[a]ll contractors and owners and their agents" (L. 1969, ch. 1108, § 1). The legislative history reveals that this amendment was intended to place "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" rather than on the workers themselves (Mem. of Senator Calandra and Assemblyman Amann, 1969 N.Y. Legis. Ann., at 407). In broadening the protection afforded by the statute, the Legislature reemphasized that section 240 was enacted for the purpose of protecting workers (see id.).

We do not write on a blank slate when interpreting Labor Law § 240(1). Indeed, a number of well-settled principles provide us with guidance. We have repeatedly stated that Labor Law § 240(1) "imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury" (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993]; see also Blake v. Neighborhood Hous Servs. of N.Y. City, 1 N.Y.3d 280, 289, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003]). To be sure, we have cautioned that an owner is not "an insurer after having furnished a safe workplace" and that an accident, in and of itself, does not establish a statutory violation (Blake, 1 N.Y.3d at 286, 289, 771 N.Y.S.2d 484, 803 N.E.2d 757). But at the same time, it is clear that the statutory duty imposed by this strict liability provision is "nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control" (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991]). Addition-ally, section 240(1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Panek, 99 N.Y.2d at 457, 758 N.Y.S.2d 267, 788 N.E.2d 616 [internal quotation marks and citation omitted]).

In a trio of cases, we examined the liability of out-of-possession owners under the Labor Law. First, in Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983), affg. for reasons stated below 86 A.D.2d 592, 446 N.Y.S.2d 131 (2d Dept.1982), a worker who sustained injuries while building a subway line commenced a Labor Law action against the Long Island Rail Road (LIRR), the property owner. LIRR moved for summary judgment dismissing the claim, submitting that it should not be deemed an "owner" for purposes of Labor Law § 241(6) because the property was subject to an easement in favor of the City of New York and the New York City Transit Authority.³ In declining to dismiss the section 241(6) claim, the court rejected LIRR's argument, reasoning that the statute imposes a...