Buckley v. Radovich

In an action to recover damages for personal injuries, the defendant Rose Lombardi, individually, and Rose Lombardi as administratrix of the estate of John Lombardi appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated July 29, 1993, which denied her motion to dismiss the plaintiffs’ second cause of action to recover damages for a violation of Labor Law § 240 (1). Ordered that the order is affirmed, with costs. The plaintiff Gerald Buckley was employed by the third-party defendant, Fillmore Real Estate, Inc. (hereinafter Fillmore). On August 26, 1988, Buckley was instructed by Fillmore to erect a “For Sale” sign on a brick commercial building owned by the defendant Rose Lombardi and her now deceased husband John Lombardi (hereinafter the Lombardis). The metal sign, which was 3 feet by 5 feet, was to be attached to the brick facade of the Lombardis’ building with masonry nails in a position so as to be visible from the street. Buckley, using a ladder, climbed up approximately 18 feet from the ground when the ladder tilted and he fell to the ground suffering injury. Buckley and his wife commenced the instant action against the Lombardis, alleging, in the second cause of action of the complaint, that the Lombardis had violated Labor Law § 240 (1). Rose Lombardi individually and as administratrix of her husband’s estate moved to dismiss the second cause of action. The Supreme Court denied the motion and the instant appeal ensued. Labor Law § 240 (1) provides, in pertinent part, that ”[a]ll contractors and owners and their agents * * * in the * * * altering * * * of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor” certain specified safety devices. The legislative purpose of the statute is to protect workers by placing the ultimate and absolute responsibility for safety practices on the owner and general contractor (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520; Koenig v Patrick Constr. Co., 298 NY 313, 318) and is to be construed as liberally as possible to accomplish that purpose (see, Quigley v Thatcher, 207 NY 66, 68). The duty is nondelegable and a violation imposes absolute liability upon owners and general contractors irrespective of whether they exercised supervision [654] or control over the work (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502; see also, Lombardi v Stout, 80 NY2d 290, 295; Haimes v New York Tel. Co., 46 NY2d 132, 136-137) and without regard for the negligence, if any, of the injured worker so long as the breach was the proximate cause of the injury (see, Bland v Manocherian, 66 NY2d 452, 459-461; Zimmer v Chemung County Performing Arts, supra, 65 NY2d, at 521). In view of these principles, the Supreme Court properly denied the Lombardi motion to dismiss the second cause of action in the complaint alleging a violation of Labor Law § 240 (1). Indeed, the holding of the Supreme Court is in accord with recent appellate authority on this issue. In Lawyer v Rotterdam Ventures (204 AD2d 878), the plaintiff was injured when he fell from a ladder while erecting a sign on the front of a building owned by the defendant. The plaintiff commenced a personal injury action alleging, inter alia, a violation of Labor Law § 240. The defendant moved for summary judgment dismissing the complaint. The Appellate Division, Third Department, denied the defendant’s motion holding that there was a cause of action under Labor Law § 240 (1). Specifically, the Appellate Division, Third Department, held: "There is little question that [the plaintiff’s] activity at the time of the accident (standing on a ladder to install a sign on defendant’s building) is the type of work contemplated by Labor Law § 240 (1) * * * The underlying facts show the scenario to be one particularly subject to the risks inherent in an elevated work site and that the injuries were proximately caused by the failure of the ladder” (Lawyer v Rotterdam Ventures, supra, 204 AD2d 878, 879). Similarly, in Neville v Deters (175 AD2d 597), the plaintiff was injured when a ladder which he was climbing kicked out, throwing him to the ground. At the time of the accident, the plaintiff was replacing a sign which was affixed to a building owned by two of the defendants. The Appellate Division, Fourth Department, held that Labor Law § 240 (1) applied because the plaintiff "was engaged in an activity entitling him to the protection of the statute * * * Moreover, it is undisputed that plaintiff fell from an elevated worksite” (Neville v Deters, supra, at 597). Again, in Gregorio v Getty Petroleum Corp. (201 AD2d 278), the plaintiff sustained fatal injuries while working on a ladder installing an electric sign to a pole. The Appellate Division, First Department, held that "[s]ince [the] plaintiff’s decedent was working on a ladder at the time of the incident and was thus exposed to an 'elevation-related hazard’, he [655] comes within the protection of Labor Law § 240 (1) if his death was proximately caused by such risk” (Gregorio v Getty Petroleum Corp., supra, at 278). Finally, in Izrailev v Ficarra Furniture (70 NY2d 813), the plaintiffs decedent, while employed by the third-party defendant K&R Electric Company, Inc., was working on an electric sign owned by the defendant Ficarra Furniture of Long Island Inc. (hereinafter Ficarra) and attached to a building owned by the defendant 100 Sunrise Highway, Inc. The plaintiffs decedent fell from a ladder and suffered injuries. The sign was only attached with a number of screws and was of use only to the defendant Ficarra, since it would not remain in place if Ficarra vacated the premises. The Court of Appeals held, inter alia, that the sign, which was affixed at a height of 15 feet, was part of the "building or structure” within the meaning of Labor Law §240 (1) (Izrailev v Ficarra Furniture, supra, at 815; see also, Ferrari v Niasher Realty, 175 AD2d 591, 592 [activity considered "altering” for purposes of Labor Law § 240 (1), where plaintiff fell from a ladder while removing storm windows]). These precedents do not rest on a distinction between a permanent and temporary sign and clearly refute the dissent’s position that the act of climbing a ladder to install a sign on an elevated part of a building does not fall within the purview of Labor Law § 240 (1). The cases relied on by the dissent are patently distinguishable on their facts and do not warrant a contrary result (see, e.g., Kesselbach v Liberty Haulage, 182 AD2d 741 [no Labor Law § 240 violation, where the plaintiff fell from ladder while installing an antenna on a roof]; Brice v Lafayette Country Club, 177 AD2d 957 [no Labor Law § 240 (1) violation, where the plaintiff fell from a ladder while hanging streamers from the ceiling in the defendant’s country club in preparation for a private party]; Manente v Ropost, Inc., 136 AD2d 681 [no Labor Law § 240 (1) violation, where the plaintiff fell from a ladder while replacing a lightbulb on a lightpole located in the defendant’s parking lot]). Accordingly, the order appealed from should be affirmed. Mangano, P. J., Copertino and Gold-stein, JJ., concur.