Opinion
12908 Index No. 154124/14 Case No. 2019-5096
01-19-2021
Wilton GASTON, Plaintiff–Appellant–Respondent, v. The TRUSTEES OF COLUMBIA UNIVERSITY in the City of New York et al., Defendants–Respondents–Appellants.
Pontisakos & Brandman, PC, Garden City (Elizabeth Mark Meyerson of counsel), for appellant-respondent. Cullen and Dykman LLP, New York (Diana Neyman of counsel), for respondents-appellants.
Pontisakos & Brandman, PC, Garden City (Elizabeth Mark Meyerson of counsel), for appellant-respondent.
Cullen and Dykman LLP, New York (Diana Neyman of counsel), for respondents-appellants.
Gische, J.P., Oing, Moulton, Mendez, JJ.
Order, Supreme Court, New York (Barbara Jaffe, J.), entered April 24, 2019, which granted defendants' motion for summary judgment to the extent of dismissing plaintiff's claims pursuant to Labor Law § 240(1) and § 241(6) and dismissing so much of the Labor Law § 200 and common-law negligence claims as premised upon the shape of the boiler and the heat in the accident location, unanimously modified, on the law, to reinstate plaintiff's Labor Law § 240(1) and § 241(6) based on Industrial Code § 23–1.7(f) claims, and to dismiss his Labor Law § 200 and negligence claims in their entirety, and otherwise affirmed, without costs.
Labor Law §§ 240(1) and 241(6) do not cover workers engaged in routine maintenance (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] ). The determination of whether a worker was engaged in a covered activity is not made at the moment of injury, but in the context of the entire project (see Prats v. Port Auth. Of N.Y. & N.J., 100 N.Y.2d 878, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ). While plaintiff here was engaged in replacing a boiler steam valve, an activity some courts have deemed routine maintenance (see Wein v. Amato Props., LLC, 30 A.D.3d 506, 816 N.Y.S.2d 370 [2d Dept. 2006] ; Goad v. Southern Elec. Intl., 304 A.D.2d 887, 758 N.Y.S.2d 184 [3d Dept. 2003] ), it was part of a larger project that included removing portions of the boilers via blowtorches and installation of new components by welding, thus raising an issue of fact whether it falls within covered activity (see Saint v. Syracuse Supply Co., 25 N.Y.3d 117, 8 N.Y.S.3d 229, 30 N.E.3d 872 [2015] ; Rivera v. Ambassador Fuel & Oil Burner Corp., 45 A.D.3d 275, 845 N.Y.S.2d 25 [1st Dept. 2007] ; Dunn v. Consolidated Edison Co. of N. Y., 272 A.D.2d 129, 707 N.Y.S.2d 420 [1st Dept. 2000] ). Defendants' alternative argument, that plaintiff was the sole proximate cause of the accident is unavailing. Defendants failed to adduce any evidence that devices adequate to the task of working atop the boiler safely were available and that plaintiff refused to use them or use them properly (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513–514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] ; see also Cuentas v. Sephora USA, Inc., 102 A.D.3d 504, 958 N.Y.S.2d 352 [1st Dept. 2013] ; Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 593, 899 N.Y.S.2d 228 [1st Dept. 2010] ).
Plaintiff's accident arose from the means and methods of the work, not a defective condition (see Ferguson v. Durst Pyramid, LLC, 178 A.D.3d 634, 117 N.Y.S.3d 12 [1st Dept. 2019] ; Collado v. City of New York, 72 A.D.3d 458, 900 N.Y.S.2d 10 [1st Dept. 2010] ), and the record is clear that defendants neither supervised nor controlled the work being performed by plaintiff and his coworkers at the time of the accident. Thus, this Court, upon a search of the record, dismisses plaintiff's Labor Law § 200 and common-law claims (see e.g. Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 793 N.Y.S.2d 337 [1st Dept. 2005] ); Canning v. Barney's N. Y., 289 A.D.2d 32, 734 N.Y.S.2d 116 [1st Dept. 2001] ).