Morales v. D & A Food Service

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about September 26, 2005, which, insofar as appealed from as limited by the briefs, granted the motion of defendant Gamillo M. Santomero, III, for summary judgment to dismiss the Labor Law § 240 (1) claim as against him, and denied plaintiffs cross motion for summary judgment on that claim, affirmed, without costs. Defendant Santomero, as landlord, leased the subject commercial property to defendant D & A Food Service pursuant to a written agreement which prohibited the tenant from “mak[ing] any structural alterations in interior or exterior without written consent of the Landlord,” and provided that “[a] 11 plans for work of any nature . . . must be subject to the Landlord’s approval prior to individual contracts being awarded.” Without obtaining landlord’s approval or even notifying landlord, tenant hired plaintiff to make repairs and changes to the premises. On plaintiffs last scheduled day of work, tenant supplied him with an extension ladder to enable him to reach the top of a 10-to-12-foot wall, where he drilled a hole and passed through telephone cables. As plaintiff began to descend the ladder, which was leaning against the wall and was not held by anyone, it slipped and he fell to the floor. Landlord moved for summary judgment to dismiss, inter alia, the claim under Labor Law § 240 (1) as against him, on the ground that he was an out-of-possession owner who lacked notice or knowledge of the work performed at the site and did not supply the equipment. Plaintiff opposed the motion and cross-moved for summary judgment on the cause of action, arguing that a landlord’s liability rests on the mere status of ownership, rendering control or knowledge of work irrelevant. Because the work was performed without landlord’s knowledge, and in violation of the lease requirement that tenant obtain prior consent, the landlord cannot be held liable under Labor Law § 240 (1) (see Sanatass v Consolidated Inv. Co., Inc., 38 AD3d 332 [2007]; Ahmed v Momart Discount Store, Ltd., 31 [353] AD3d 307 [2006]). The conclusion reached in our prior decisions in Sanatass and Ahmed is compelled by Abbatiello v Lancaster Studio Assoc. (3 NY3d 46, 51 [2004]), in which the Court of Appeals “refuse[d] to impose absolute liability on an owner where a cable technician is injured while performing work without the owner’s knowledge or consent.” In Abbatiello, the plaintiff cable technician was dispatched to a building in response to a complaint of a tenant who was a cable service subscriber (see id. at 49). The landlord neither consented to nor knew of the work, although the plaintiff’s presence was authorized by Public Service Law § 228 (1), which grants cable companies mandatory access to premises. The concurrence would limit Abbatiello to cable workers who are present on premises solely by operation of the Public Service Law. However, the Court of Appeals expressly rejected the theory of the Second and Third Departments that “ownership alone” may determine whether an owner is liable under Labor Law § 240 (1) (id. at 51), and affirmed the First Department’s ruling that “there could be no Labor Law § 240 (1) liability . . . because the owner did not authorize or even know of plaintiffs presence” (id. at 50). The concurrence draws attention to the Court of Appeals’ statements that the owner was: “powerless to determine which cable company is entitled to operate, repair or maintain the cable facilities on its property, since such decision lies with the municipality—the franchiser . . . but for Public Service Law § 228, plaintiff would be a trespasser upon [the owner’s] property and [the owner] would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between [the owner] and [the cable company] or the plaintiff’ (id. at 52). The Court explained that in: “all cases imposing Labor Law § 240 (1) liability on an out-of-possession owner [there] is some nexus between the owner and the worker, whether by lease agreement or grant of an easement, or other property interest. Here, however, no such nexus exists. The injured plaintiff was on the owner’s premises not by reason of any action of the owner but by reason of the provisions of the Public Service Law” (id. at 51). The crucial factor in denying liability was not that there was a statute (the Public Service Law), but that there was no nexus with the owner and no action on the owner’s part. Indeed, the Court of Appeals has “consistently ‘observed that the purpose of [Labor Law § 240 (1)] is to protect workers by placing ultimate responsibility for safety practices on owners and [354] contractors instead of on workers themselves’ ” (id. at 50 [emphasis added], quoting Panek v County of Albany, 99 NY2d 452, 457 [2003]), “who ‘are scarcely in a position to protect themselves from accident’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985], quoting Koenig v Patrick Constr. Corp., 298 NY 313, 318 [1948]). Labor Law § 240 (1) itself speaks in terms of an affirmative duty by owners and contractors to “furnish or erect, or cause to be furnished or erected” such safety devices as to give proper protection to a worker. In enacting the statute, the Legislature looked to owners and contractors “as the entities best able to control the workplace and provide for its safety” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 286 [2003]). The statute imposes upon owners and contractors a responsibility to furnish a safe workplace, but does not make them insurers (see id. at 286, 292). The occurrence of an accident, alone, does not give rise to liability under the Labor Law, but rather there must be some breach of the owner’s (or contractor’s) duty; for example there is no recovery where the worker’s actions are the sole proximate cause (see id. at 286-292). As the Court of Appeals noted in Abbatiello, an owner “cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law § 240 (1) for [workers] of whom it is wholly unaware” (3 NY3d at 52). Of particular importance is the fact that the Court of Appeals rejected the argument that the Public Service Law gives owners constructive notice that cable workers would periodically come upon their property (see id.). A general awareness that cable workers might show up at some indeterminate date does not give an owner an opportunity to see to it that a particular worker is furnished with the safety devices required for a specific task. The concurrence draws a distinction between the owner in Abbatiello, which was “powerless” to determine the work performed on its premises (3 NY3d at 52), and the landlord in the instant case, who “had full control over [his] building.” Landlord tried to exercise that, control by requiring prior notice of any work; he would be rendered powerless if held liable notwithstanding a violation of the provision or lack of independent knowledge. As aptly noted by the concurrence, “[t]he Legislature’s determination [in enacting Labor Law § 240 (1)] was based upon owners’ ability to ensure safe working conditions, and its desire to create a strong incentive for those parties to see that proper precautions were taken to prevent accidents” (emphasis added). The existence of a lease, by itself, did not create a nexus be [355] tween landlord and plaintiff, because the lease did not grant the tenant the authority to undertake work without notifying the landlord. Far from frustrating the purpose of the Labor Law, i.e., to protect workers from injury (see Blake, 1 NY3d at 285), upholding the lease requirement would further that goal, by giving owners the opportunity (and incentive) to see to it that the workplace is made safe. Concur—Williams, Buckley and Gonzalez, JJ.