Opinion
24072.
Decided February 25, 2004.
Dupée, Dupée Monroe, P.C., By: James E. Monroe, Esq., Attorneys for the Plaintiffs, Goshen, NY.
Penino Moynihan, LLP, By: Stephen J. Penino, Esq., Attorneys for the Defendant, White Plains, NY.
The Defendant applied to the Court for an Order vacating the Note of Issue and removing this action from the trial calendar. By Stipulation submitted to the Court on November 11, 2003, the Plaintiff agreed to withdraw the Note of the Issue, and the Defendant withdrew its Notice of Motion to Strike the Note of Issue.
The Plaintiff filed an application for an Order pursuant to CPLR 3212 seeking partial summary judgment in favor of the Plaintiffs pursuant to Labor Law § 240(1). The Defendant cross-moved for an Order granting summary judgment to the Defendant Summary Judgment dismissing all causes of action sounding in Labor Law, as well as any and all claims sounding in negligence.
By letter to the Court dated December 2, 2003, the Plaintiff's attorney, James E. Monroe, Esq., indicated that "to the extent that this record does not support the contention that defendant directed and controlled the performance of plaintiff's work, we will agree to withdraw our Labor Law § 200 claim."
The Plaintiff's Motion seeks summary judgment on the issue of liability pursuant to Labor Law § 240(1). At the time of the incident on August 31, 2000, the Plaintiff John VanDerWiele was an employee of Liberty Pest Control, when the Defendant contracted with Liberty Pest Control to perform extermination services at the Defendant's premises. On August 31, 2000, the Plaintiff was applying pesticide to the upper roof of the premises, known as the Pakatan Lodge. The Plaintiff required the use of two ladders, the first a thirty-two-foot extension ladder to reach the porch roof, and a second twenty-five-foot ladder to reach the dormers and upper roof of the premises. The Plaintiff fell from an approximate height of 10 feet onto the porch roof, and injured his back.
The Plaintiff first argues that the application of insecticide through the use of a "truck mounted power spray connected by high pressure hoses" fall within the definition of "cleaning" a building pursuant to Section 240(a) of the Labor Law as defined by the Third Department in Vernum v. Zilka, 241 A.D.2d 885, 660 N.Y.S.2d 599 [3rd Dept., 1997], See also, Nephew v. Barcomb, 260 A.D.2d 821, 688 N.Y.S.2d 751 [3rd Dept., 1999]).
Section 240(1) of the Labor Law which protects workers "against the dangers of elevation-related hazards in the workplace only applies to those workers who, at the time of the accident, are engaged in one of the enumerated activities, or engaged in work sufficiently necessary and incidental to one of the enumerated activities ( La Fontaine v. Albany Management, Inc., 257 A.D.2d 319, 691 N.Y.S.2d 640 [3rd Dept., 1999]). The activities specifically covered under Labor Law § 240(1) include "the erection, demolition, repairing, altering, painting, cleaning or pointing of building or structure." In La Fontaine v. Albany Management, Inc., supra., the Court found that wallpapering was not subsumed under either painting or altering, and noted that a Court's construction and implementation of a statute should "implement a "fair and reasonable meaning" of the statute and avoid "a construction which . . . extends . . . its provisions beyond that which was evidently intended."
The Court finds, in the case at bar, that the application of pesticides is not subsumed under the activity of cleaning, and is not an activity covered under Labor Law Section 240(1).
The Defendant contends, as an additional basis upon which to find that Section 240(1) of the Labor Law does not apply is the statutory exemption for owners of one and two family homes. The Court finds that, if it had been determined herein that the Plaintiff was involved in an activity covered under Labor Law § 240(1), an issue of fact has been raised with regard to whether the Defendant's premises constitutes a one or two family home, and summary judgment is not being granted on that basis ( Sheehan v. Gong, 2003 Slip Op. 19216, 769 N.Y.S.2d 507 [1st Dept., 2003], Sotne v. Altarac, 305 A.D.2d 849, 761 N.Y.S.2d 109 [3rd Dept., 2003]).
The Plaintiff's motion for partial summary judgment is denied, and the Defendant's application for summary judgment dismissing the Plaintiff's Labor Law § 240(1) claim is hereby granted.
The Defendant also seeks summary judgment dismissing the Plaintiff's Labor Law § 200 and common law negligence cause of action. It is undisputed that, on August 31, 2000, the Plaintiff was an employee of Liberty Pest Control Company. The Defendant also argues, and it is unrefuted, that the Plaintiff is unable to identify what, if anything caused the ladder to shift.
Section 200 of the Labor Law is a codification of the common-law duty to provide workers with a safe work environment. "An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russin v. Louis N. Piccinao Son, 54 N.Y.2d 311, 445 N.Y.S.2d 127). In order for Plaintiffs to prevail on their common-law negligence and Labor Law § 200 causes of action, they must establish that the landowner supervised or controlled the very manner or methods by which Plaintiff did his work or that it exercised direct supervision and control over his work at the time of the accident ( Shields v. General Elec. Co., 2004 N.Y. Slip Op. 00188, 2003 WL 23163074 [3rd Dept., 2004]), or that the Defendant had actual or constructive notice of a dangerous condition which caused the accident ( Bonura v. KWK Associates, Inc, 2 A.D.3d 207, 770 N.Y.S.2d 5 [1st Dept., 2003]).
The Defendants have established their entitlement to summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action by establishing that there is no issue of triable fact concerning their lack of control and supervision of Plaintiff's work, and since the Plaintiff was unable to identify what caused the ladder to shift, no issue of triable fact was raised regarding Defendant's actual or constructive notice of any alleged dangerous condition (see Walker v. Ekleco Co., 304 A.D.2d 752, 757 N.Y.S.2d 764 [2nd Dept., 2003]). In opposition, the plaintiffs failed to raise a triable issue of fact ( Nobre v. Nynex Corp., 2 A.D.3d 602, 769 N.Y.S.2d 556 [2nd Dept., 2003]).
Accordingly, the Defendant's motion for summary judgment dismissing the Plaintiff's Labor Law § 200 and common law negligence causes of action is also hereby granted.
Finally, the Defendants have moved for summary judgment dismissing the Plaintiff's cause of action brought pursuant to Labor Law § 241(6). Section 241(6) of the Labor Law applies only to construction, demolition and excavation work. In the case at bar, the Plaintiff was engaged in pesticide application, which would be considered routine maintenance work that was not construction, demolition or excavation within the meaning of Labor Law § 241(6) at the time of his accident ( Nagel v. D R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581, Chavez v. Katonah Management Group, Inc. Co., 305 A.D.2d 358, 759 N.Y.S.2d 158 [2nd Dept., 2003]).
Based upon the foregoing, the Defendants' motion for an Order granting Summary Judgment dismissing all causes of action sounding in Labor Law, as well as any and all claims sounding in negligence is hereby granted.
Wherefore, it is hereby
ORDERED that the Plaintiff's complaint in the above-captioned action is dismissed and the Clerk is directed to enter a judgment in accordance herewith. This memorandum shall constitute the Decision and Order of this Court. The original Decision and Order, together with the motion papers have been forwarded to the Clerk's office for filing. The filing of this Order does not relieve counsel from the obligation to serve a copy of this order, together with notice of entry, pursuant to CPLR § 5513(a).