Summary
holding that the installation of window shades, entailing the securing of brackets with screws, did not constitute a “significant physical change”
Summary of this case from In re World Trade Ctr. Lower Manhattan Disaster Site Litig.Opinion
2013-04-2
Luis AMENDOLA, Plaintiff–Appellant, v. RHEEDLEN 125TH STREET, LLC, et al., Defendants–Respondents, Hellman Construction Co., Inc., Defendant. (And Third–Party Actions).
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant. Shearman & Sterling LLP, New York (Casey O'Neill of counsel), for Rheedlen 125th Street, LLC and Harlem Children's Zone, Inc., respondents.
Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant. Shearman & Sterling LLP, New York (Casey O'Neill of counsel), for Rheedlen 125th Street, LLC and Harlem Children's Zone, Inc., respondents.
Burns, Russo, Tamigi & Reardon, LLP, Garden City (Jeffrey M. Burkhoff of counsel),for Tishman Construction Corporation, Tishman Construction Corporation of New York and Tishman Construction of Manhattan, respondents.
FRIEDMAN, J.P., SWEENY, RENWICK, RICHTER, ROMÁN, JJ.
Orders, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 18, 2012, which, insofar as appealed as limited by the briefs, granted defendants-respondents' motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as asserted against them, unanimously affirmed, without costs.
Plaintiff sustained injuries when he fell from a ladder while installing window shades in a building owned by defendant Rheedlen 125th Street, LLC (Rheedlen) and leased by defendant Harlem Children's Zone, Inc. (HCZ). HCZ retained the Tishman defendants (Tishman) as a construction manager to construct a charter school and community center, and Tishman retained third-party defendants City View Blinds of N.Y. Inc. and Abalene Decorating Inc. (collectively City View), plaintiff's employer, for window treatment and window shade work.
The court properly dismissed the Labor Law § 240(1) claims as asserted against defendants-respondents. Contrary to plaintiff's contention, his work of hanging window shades at the time of the accident does not constitute “altering” within the meaning of Labor Law § 240(1). The evidence shows that the shade installation work essentially entailed securing brackets with screws to the ceiling or pan protruding from the wall, and inserting the shades into the bracket. This work does not amount to 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] [emphasis omitted]; cf. Belding v. Verizon N.Y., Inc., 65 A.D.3d 414, 415–416, 883 N.Y.S.2d 517 [1st Dept. 2009], affd.14 N.Y.3d 751, 898 N.Y.S.2d 539, 925 N.E.2d 577 [2010] ). Plaintiff's contention that the work constitutes “repairing” under the statute is unsupported by the record. Indeed, plaintiff and the witnesses all testified that new shades were being installed at the time of the accident.
Nor was the shade work performed in the context of the larger construction project ( see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003];Martinez v. City of New York, 93 N.Y.2d 322, 690 N.Y.S.2d 524, 712 N.E.2d 689 [1999] ). Although HCZ and Tishman commenced discussions about the subject work while Tishman was still on site carrying out its obligations under the construction management agreement with HCZ, and Tishman sought pricing information from City View under its subcontract with City View, the evidence also shows that Tishman and HCZ ultimately decided that it would be more efficient if HCZ contacted City View directly for the work, given that the construction project and Tishman's construction management obligations were coming to an end. The documentary evidence shows that City View then directly sent HCZ, as opposed to Tishman, proposals and invoices for the subject work, and that HCZ paid City View directly for the services. Accordingly, given the circumstances here, we find that the shade work was not “ongoing and contemporaneous with the other work that formed part of a single contract”; rather, it fell “into a separate phase easily distinguishable from other parts of the larger construction project” ( Prats, 100 N.Y.2d at 881, 768 N.Y.S.2d 178, 800 N.E.2d 351).
Because the shade work is distinct from the construction work, Labor Law § 241(6) also does not apply ( see Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581, 782 N.E.2d 558 [2002];Rajkumar v. Budd Contr. Corp., 77 A.D.3d 595, 595, 909 N.Y.S.2d 453 [1st Dept. 2010] ).