Opinion
Argued October 8, 1996
Decided November 19, 1996
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered April 19, 1996, which, with two Justices dissenting in part, (1) reversed, on the law, an order of the Supreme Court (Peter J. Notaro, J.), entered in Erie County, denying a motion by defendant for summary judgment dismissing the complaint, (2) granted the motion, and (3) dismissed the complaint.
Plaintiff laborer commenced the present action pursuant to Labor Law §§ 200, 240 and 241 to recover damages for personal injuries he sustained on a construction site when he fell some 30 to 35 feet from a structure he was working on. Plaintiff's employer, Tonawanda Coke Corporation (Tonawanda), had entered into a sale and lease-back transaction with defendant Erie County Industrial Development Agency, which retained title to the property, allegedly for tax benefits only; upon the expiration of the lease, title was to be reconveyed to Tonawanda for nominal consideration. Defendant moved to dismiss, contending, inter alia, that it was not an "owner" for purposes of the Labor Law.
The majority at the Appellate Division noted that in Collins v County of Monroe Indus. Dev. Agency ( 167 A.D.2d 914, 915, lv dismissed 77 N.Y.2d 874) it was held that a sale and lease-back transaction between the fee owner and the local industrial development agency (IDA) was not a "genuine allocation of ownership" for purposes of Labor Law § 240 (1); that the IDA served only as a conduit for the tax benefits derived by such an arrangement; that it assumed no risk of loss and had no opportunity for gain; that in Collins the former title owner, by virtue of the lease back, retained its ownership ability to control the circumstances of construction upon the premises, and under the circumstances, was an owner within the meaning of Labor Law § 240, and concluded that the subject sale and lease-back transaction between Tonawanda and defendant is identical in all material respects to the transaction in Collins; that because Tonawanda retained its ownership ability to control the construction project upon the premises and defendant never acquired that ownership right and did not contract away or delegate it to another, defendant was not an owner within the meaning of Labor Law § 240 (1) or § 241 (6), and that because defendant had no authority to control the work being performed, no liability attached to it under common-law negligence or Labor Law § 200.
The dissenting in part memorandum noted that defendant is the title owner of the property, and concluded that the majority's holding negated the clear wording of Labor Law § 240 (1), which states that an owner is absolutely liable for damages for injuries arising out of a violation of the statute, that if an exception is to be made for "pass-through" owners like defendant, then such a change must be made by the Legislature, and that defendant as a public entity that owns the land, accepts the advantages and disadvantages associated with that ownership.
Paul William Beltz, P.C., Buffalo (Catherine M. Beltz of counsel), for appellants.
Smith, Murphy Schoepperle, LLP, Buffalo (Frank G. Godson and Lynn D. Gates of counsel), for respondent.
Adimey v Erie County Indus. Dev. Agency, 226 A.D.2d 1053, modified.
Order modified, without costs, by reinstating plaintiff's Labor Law § 240 (1) cause of action and, as so modified, affirmed, for the reasons stated in the dissenting in part memorandum at the Appellate Division ( 226 A.D.2d 1053).
Concur: Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK.