Opinion
555 CA 22-01904
08-11-2023
Steven PRIMOSCH and Jeanne Primosch, Plaintiffs-Respondents, v. PEROXYCHEM, LLC, Defendant-Appellant. (Appeal No. 1.)
GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR DEFENDANT-APPELLANT. CARL W. MORGAN, P.C., HAMBURG (CARL W. MORGAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR DEFENDANT-APPELLANT.
CARL W. MORGAN, P.C., HAMBURG (CARL W. MORGAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it denied those parts of defendant's cross-motion seeking summary judgment dismissing plaintiffs’ Labor Law §§ 240 (1) and 241 (6) claims is unanimously dismissed without costs and the order is modified on the law by denying plaintiffs’ motion.
Memorandum: Plaintiffs commenced this action asserting claims pursuant to Labor Law §§ 200, 240 (1), and 241 (6) for injuries that Steven Primosch (plaintiff) allegedly sustained when he received an electric shock while performing work on a vacuum circuit breaker (VCB) at defendant's substation. The electrical power to the VCBs was ordinarily cut off for the purposes of the work plaintiff was performing, but at the time of the accident, VCB #6, on which plaintiff was working, had not been de-energized.
In appeal No. 1, defendant appeals from an order that granted plaintiffs’ motion for summary judgment on the issue of defendant's liability under Labor Law § 200 and denied defendant's cross-motion for summary judgment dismissing the complaint. Following entry of the order in appeal No. 1, defendant moved for, inter alia, leave to reargue its cross-motion insofar as it sought summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims, and plaintiffs cross-moved for leave to reargue with respect to those claims, seeking a determination that plaintiff was performing the protected activity of cleaning. Supreme Court granted leave to reargue and, in appeal No. 2, defendant appeals from an order that, upon reargument, adhered to the prior determination denying those parts of defendant's cross-motion for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims and, after searching the record, determined that plaintiffs were entitled to summary judgment on their Labor Law § 240 (1) claim.
As a preliminary matter, we dismiss the appeal from the order in appeal No. 1 insofar as it denied those parts of defendant's cross-motion seeking summary judgment dismissing plaintiffs’ Labor Law §§ 240 (1) and 241 (6) claims (see Burns v. Lecesse Constr. Servs. LLC , 130 A.D.3d 1429, 1431-1432, 12 N.Y.S.3d 722 [4th Dept. 2015] ; Loafin’ Tree Rest., Inc. v. Pardi [appeal No. 1], 162 A.D.2d 985, 985, 559 N.Y.S.2d 51 [4th Dept. 1990] ). The contentions relating to that part of the order in appeal No. 1 are appropriately the subject of the order in appeal No. 2.
In appeal No. 1, we agree with defendant that the court erred in granting plaintiffs’ motion for summary judgment on their Labor Law § 200 claim. We reject defendant's further contention, however, that the court erred in denying defendant's cross-motion insofar as it sought summary judgment dismissing that claim. We conclude that the parties’ submissions demonstrate that there is a question of fact whether plaintiff's conduct was an intervening superseding cause of his injuries. The record is clear that defendant failed to de-energize VCB #6, but the record further establishes that electricians are supposed to test the wires for high voltage and attach grounds for protection and that plaintiff would have been expected to do so. Under the circumstances of this case, a question of fact exists whether plaintiff's conduct constitutes an unforeseeable, superseding act "sufficient to break the causal chain, thus absolving defendant of any claimed liability" ( Haughton v. T & J Elec. Corp. , 309 A.D.2d 1007, 1009, 765 N.Y.S.2d 664 [3d Dept. 2003], lv denied 1 N.Y.3d 508, 777 N.Y.S.2d 17, 808 N.E.2d 1276 [2004] ; see generally Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980], rearg denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010 [1980] ; Neumire v. Kraft Foods, Inc. , 291 A.D.2d 784, 785, 737 N.Y.S.2d 457 [4th Dept. 2002], lv denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186 [2002] ; Pomeroy v. Buccina , 289 A.D.2d 944, 945, 735 N.Y.S.2d 678 [4th Dept. 2001] ). We therefore modify the order in appeal No. 1 by denying plaintiffs’ motion for summary judgment on their Labor Law § 200 claim.
In appeal No. 2, we agree with defendant that, upon reargument, the court erred in denying defendant's cross-motion insofar as it sought summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims. With respect to the Labor Law § 240 (1) claim, defendant met its initial burden on the cross-motion of establishing that plaintiff was not engaged in "cleaning" the VCBs for the purposes of Labor Law § 240 (1) based on the factors set forth in ( Soto v. J. Crew, Inc., 21 N.Y.3d 562, 568, 976 N.Y.S.2d 421, 998 N.E.2d 1045 [2013] ). In particular, defendant's submissions demonstrated that the work was "the type of job" that was performed routinely and recurrently "with relative frequency as part of the ordinary maintenance and care of a commercial property" ( Healy v. EST Downtown, LLC , 38 N.Y.3d 998, 1000, 168 N.Y.S.3d 5, 188 N.E.3d 131 [2022] ), and plaintiffs’ original motion referred to the work accordingly as "certain inspection, testing and maintenance service work." Moreover, the risk inherent in the work resulted not from gravity but from the high voltage of the VCBs and, therefore, the work did not implicate the "core purpose of Labor Law § 240 (1)" ( Soto , 21 N.Y.3d at 568, 976 N.Y.S.2d 421, 998 N.E.2d 1045 ). Thus, we conclude that defendant established that, rather than cleaning, plaintiff was engaged in "routine maintenance in a non-construction, non-renovation context" to which section 240 (1) does not apply ( Ozimek v. Holiday Val., Inc. , 83 A.D.3d 1414, 1415, 920 N.Y.S.2d 528 [4th Dept. 2011] ; see Esposito v. New York City Indus. Dev. Agency , 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ), and we conclude that plaintiffs failed to raise a triable issue of fact in opposition. We further conclude that defendant met its initial burden of demonstrating that plaintiff's work was not within the coverage of Labor Law § 241 (6), which is limited to work performed in the context of construction, demolition, or excavation (see Nagel v. D & R Realty Corp. , 99 N.Y.2d 98, 102, 752 N.Y.S.2d 581, 782 N.E.2d 558 [2002] ; Deangelis v. Franklin Plaza Apts., Inc. , 189 A.D.3d 772, 773, 133 N.Y.S.3d 470 [2d Dept. 2020] ), and we conclude that plaintiffs failed to raise a triable issue of fact in opposition. We therefore reverse the order insofar as appealed from in appeal No. 2, grant defendant's cross-motion in part, and dismiss plaintiffs’ Labor Law §§ 240 (1) and 241 (6) claims.