Opinion
22650/2003.
Decided March 23, 2005.
Law Office of Thomas J. Genova, New York, New York, for Plaintiff.
Herzfeld Rubin, PC, by Michael Seltzer, Esq., New York, New York, for Defendant NASDAQ.
Law Offices of Thomas J. Leonard by Rik Bachman, Esq., White Plains, New York, for Defendants Four Times Square and Durst.
This motion by defendant NASDAQ Stock Market, Inc., ("NASDAQ") for summary judgment dismissing the plaintiff's complaint and all cross-claims against it is granted. Cross-motion by defendants Four Times Square Associates, L.L.C., ("Four Times Square") and The Durst Organization, Inc., ("Durst") for contractual and common law indemnification against NASDAQ and summary judgment against the plaintiff is granted to the extent that plaintiff's complaint against Times Square and Durst is dismissed. Cross-motion by plaintiff for summary judgment in his favor against all defendants and severance of the third-party action is denied in light of the foregoing dispositions.
Plaintiff was injured in a fall from a ladder while attempting to reach a dark area of the electric NASDAQ sign in Times Square. The sign extends across the side and up several stories of a building owned by defendant Four Times Square, a limited liability corporation, of which defendant Durst owns a 1% share. NASDAQ is a tenant in the building and controls the sign. The NASDAQ sign is an electrically lighted LED display with continuously moving letters and symbols. NASDAQ entered into a maintenance contract with plaintiff's employer, the Landmark Sign and Electrical Maintenance Corporation ("Landmark") to "inspect and maintain" the sign by random daily inspections to ensure its operation at 100% capacity, repairing any malfunction immediately. The contract required Landmark to submit weekly status reports, monthly invoices identifying the nature of the services provided and an annual engineer's structural inspection report.
On the day in question, Landmark's "spotter", inspecting the sign from the street, noted an unlighted area. Plaintiff, a "technician" employed by Landmark, was called to rectify the problem. Plaintiff accessed the area by means of a ladder attached to the building behind the sign. Plaintiff was able to determine that the electrical outage in the unlighted area was due to the failure of a part he referred to as a "power supply", a 6-by 8-by 12-inch box that converts AC power to three different DC voltages. Whenever a power supply box failed, it was replaced by another box. (Deposition of Felipe Arevalo, May 25, 2004 at 42-44). Plaintiff had been to the sign at least 40 times previously and replaced power boxes on approximately ten occasions ( Id. at 39). The last time plaintiff had replaced a box was approximately one week before the accident ( Id. at 91). Replacement involved unplugging the box, removing the wires attached to it, unbolting it from its place, putting in the new part, reattaching the wires and plugging it in ( Id. at 40). When asked whether this was a normal occurrence in plaintiff's work, he responded that it is "one of the things that may occur" ( Id. at 41).
After ascertaining the exact source and location of the dark spot on the sign, plaintiff began to descend the ladder to the correct area. He testified that, at some point, "I must have lost my grip or misstepped" ( Id. at 37-38). Plaintiff fell from the ladder to the catwalk below and sustained a dislocated shoulder and badly fractured ankle.
Plaintiff commenced this action against the above-named defendants alleging violations of Labor Law § 200 and § 240(1). A Note of Issue certifying that discovery was complete was filed by plaintiff on March 16, 2005. Even before that filing, NASDAQ made the instant motion for summary judgment arguing that plaintiff cannot make a prima facie case of liability against it. Four Times Square and Durst cross-moved for contractual and common law indemnification by NASDAQ and summary judgment in their favor as against the plaintiff. Plaintiff cross-moved for summary judgment against all defendants.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment ( Andre v. Pomeroy, 35 NY2d 361). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact ( Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065).
Labor Law § 200 codifies common law and imposes a statutory nondelegable duty on general contractors and owners of property where work is performed to maintain a safe work place for all persons employed on the premises and all others lawfully frequenting the premises ( Gasperino v. Larsen Ford, Inc., 426 F2d 1151 [2d Cir 1970], cert. denied 400 US 941). For liability to apply, an owner or general contractor must have (1) voluntarily assumed and exercised supervision and control over the methods and tools of the worker, and (2) had notice of the defective or unsafe condition ( Comes v. N.Y.S. Electric, 82 NY2d 876).
Labor Law § 240(1) imposes liability on owners and general contractors for failure to provide proper equipment for gravity-related hazards to covered persons. Covered persons are employees in the erecting, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. A sign extending across the facade of a building and affixed so as to be held flat against the building wall is a part of the building or structure for purposes of the statute ( Izrailev v. Ficarra Furniture of Long Island, 70 NY2d 813). The repair of a broken or non-functioning structure is a covered activity under the statute ( Spiteri v. Chatwal Hotels, 247 AD2d 297 [1st Dept 1998] [elevator repair man who fell while attempting to access non-working elevator covered under § 240]; Holka v. Mt. Mercy Academy, 221 AD2d 949 [4th Dept 1995] [replacement of broken blower motor in building's ventilation system a covered activity under § 240]).
Persons involved or engaged in routine maintenance or decorative modifications as opposed to the activities mentioned in the statute are not covered persons ( Joblon v. Solow, 91 NY2d 457). Work that is not done in the context of construction or renovation is not covered by the statute ( Esposito v. New York City Industrial Development Agency, 1 NY3rd 526 [replacing worn, loose motor of air conditioning unit and "chewed up" belts not "repair" under § 240]; see also Consentino v. Long Island Railroad, 201 AD2d 528 [2nd Dept 1994] [splicing of telephone wires not involving service improvement to facility was routine maintenance]; Jehle v. Adams Hotel Associates, 264 AD2d 354 [replacing air conditioning filters, cleaning coil, replacing broken belt and adjusting worn pulley pursuant to maintenance and repair contract routine maintenance]; Edwards v. 2426 Main Street Assoc., 195 AD2d 741 [2nd Dept 1993] [repair of plywood shelves in warehouse was routine maintenance in non-construction, non-renovation context]; Manente v. Ropost, Inc., 136 AD2d 681 [2nd Dept 1988] [changing light bulb in light pole was routine maintenance]).
In support of its motion, NASDAQ offered plaintiff's deposition testimony; the Bill of Particulars; an affidavit by Douglas Moore, Vice President of Telecommunications for NASDAQ; the affidavit of Sean Plumb, NASDAQ's Director of Corporate Real Estate and Property Management, and an affirmation by NASDAQ's attorney. Plaintiff testified as set forth above.
Douglas Moore stated that his duties included monitoring contracts between NASDAQ and other entities and the maintenance contract between Landmark and NASDAQ was in effect on the date of plaintiff's accident, June 5, 2003. Sean Plumb stated that NASDAQ did not install any safety device on or near the ladder at any time after plaintiff's accident, but that a harness system was subsequently installed by Landmark for the benefit of its own employees. Sean Plumb was not aware of any other accidents on the subject ladder either before or after plaintiff's accident and NASDAQ has no accident reports pertaining to the ladder.
NASDAQ's attorney asserted that plaintiff has not identified any defect of the subject ladder or demonstrated that NASDAQ had notice of any defect, requirements for liability under § 200. NASDAQ argued further that plaintiff's activity on the day of his accident consisted of routine maintenance, and was consequently not covered by § 240(1).
In opposition to the motion, plaintiff offered his own affidavit and argued that the dark portion on the NASDAQ sign on the day of his accident made the entire intended message displayed on the sign incomprehensible, thus having the same effect as to render the whole sign inoperable and bring repair of the sign under the coverage of § 240(1). He did not state what the intended message of the sign was on that day. He argued further that there is an issue of fact as to whether NASDAQ had notice of the need for a safety harness on the subject ladder since one was installed after the accident and therefore, summary judgment on the issue of liability under § 200 is inappropriate. He argued in the alternative that discovery was not complete and only NASDAQ controls the information as to whether it had notice of the need to install a safety device on the subject ladder.
NASDAQ has demonstrated its entitlement to summary judgment which neither the plaintiff nor co-defendants have refuted with admissible evidence. Plaintiff has offered no evidence to show that NASDAQ or the other defendants had notice of a defective condition relating to the subject ladder or that they exercised any control over plaintiff's work ( see Comes, 82 NY2d 876). Plaintiff himself has identified no defect on or about the subject ladder. NASDAQ's witness, Sean Plumb, stated affirmatively that NASDAQ did not have notice of a defect and did not install the safety device. Plaintiff has not shown that the work he was engaged in at the relevant time was performed in the context of construction or renovation ( see Esposito, 1 NY3d 526). He has not shown that his task, the regularly occurring replacement of a part the approximate size of two reams of letter paper, was anything other than routine maintenance for the sign in question ( See Jehle, 264 AD2d 354). The entire sign was not broken and plaintiff's work was not addressed to changing its function or improving its display in any way, only to maintaining its continuous operation at 100% capacity as originally designed and built ( See Consentino, 201 AD2d 528). Plaintiff's argument that this fact situation is the same as that in Izrailev, where the Court of Appeals found § 240 covered repair of a sign "operating improperly", is unconvincing. Neither the Court of Appeals nor the lower court in that case offered any explanation or detail as to the nature of that sign's "improper" operation.
The action against NASDAQ is, therefore, dismissed. For the same reasons, plaintiff's action as against co-defendants Four Times Square and Durst is also dismissed. In addition, co-defendants offered the affidavit of Louise B. Baccari, vice president and general counsel for Durst, stating that Durst and Four Times Square were out-of-possession owners and, consequently, without any possible liability under § 200. In light of the dismissal of the entire action, it is not necessary to reach the issue of co-defendants' contractual or common law indemnification by NASDAQ.
Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the action in its entirety.
This constitutes the decision and order of the court.