Robertson v. Little Rapids Corp.

—Crew III, J. Cross appeals from an order of the Supreme Court (Demarest, J.), entered June 25, 1999 in St. Lawrence County, which, inter alia, denied plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) and denied defendants’ cross motions for summary judgment dismissing the complaint. Defendant Little Rapids Corporation and defendant Potsdam Paper Corporation (hereinafter collectively referred to as LRC) contracted with defendant Laframboise Group, Ltd. to replace an 8,500-pound top press roll on a paper press machine located at their paper factory. Laframboise, in turn, subcontracted with MRL Contractors of New York, Ltd. to replace the top press roll. Plaintiff, an employee of MRL, was standing on a platform ladder attempting to install the new roll when the [561] wrench he was using slipped, and he fell to the floor sustaining serious injuries. Plaintiff commenced the instant action against LRC and Laframboise asserting causes of action based upon common-law negligence, as well as violations of Labor Law §§ 200, 240 (1) and § 241 (6). Following joinder of issue and discovery, plaintiff moved for partial summary judgment on the issue of liability under Labor Law § 240 (1) and Laframboise cross-moved for summary judgment dismissing the complaint against it or, in the alternative, for a conditional order of common-law indemnification against LRC. LRC joined in Laframboise’s motion to dismiss the complaint but made no independent cross motion of its own. Supreme Court denied the motions and these appeals ensued. Initially, defendants contend that Supreme Court erred in denying their cross motions for summary judgment dismissing plaintiff’s Labor Law § 240 (1) cause of action. We agree. The issue here distills to whether the replacement of the top press roll on the paper press machine constituted a “repair” or “routine maintenance,” the former coming within the ambit of the statute while the latter does not (see, Goad v Southern Elec. Intl., 263 AD2d 654, 655). While the case at bar deals with the replacement of an enormous piece of equipment and, thus, entails a process that arguably is fraught with danger, that factor alone does not bring this case within the narrow confines of the statute (see, id., at 656). Plaintiff further urges that the work being performed on the paper machine constituted a repair because the machine was malfunctioning in that it failed to produce a marketable paper product. While that may be so, the subject machine was neither inoperable nor malfunctioning in the legal sense required to bring the case within the ambit of the Labor Law. While the machine was not producing a marketable product, that had to do with the failure of LRC to timely replace the top press roll. The record makes plain that such component had a finite life and had to be replaced at least three times per year; when, as here, the roll was not replaced in a timely fashion, it would become out-of-round and produce an uneven and defective paper product. Accordingly, it is evident that the contemplated replacement of a component with a limited useful life can constitute nothing more than routine maintenance. While the structure dealt with here, in a spatial sense, is far different than the sign at issue in Smith v Shell Oil Co. (85 NY2d 1000), analogy to that case is apt. In Smith, a large illuminated Shell sign was not “working” because a number of [562] light bulbs had burned out and needed to be replaced. In that sense it could be said, as plaintiff urges with respect to the paper press machine, that the sign was malfunctioning. Nevertheless, the Court of Appeals had no difficulty in determining that the sign in Smith was neither inoperable nor malfunctioning for the purpose of Labor Law § 240 (1), holding that changing the light bulbs did not constitute the repair of that structure (see, id., at 1002). So too, the changing of the top press roll here did not constitute a repair of the paper press machine, and Supreme Court erred in denying the motion to dismiss the cause of action grounded upon Labor Law § 240 (1). We come to a different conclusion with regard to Supreme Court’s denial of the motion to dismiss plaintiff’s Labor Law § 241 (6) cause of action. It is axiomatic that to prevail upon such a cause of action, plaintiff must demonstrate that defendants failed to comply with “specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). In our view, the regulation relating to mobile scaffolds (12 NYCRR 23-5.18) is sufficiently specific to support plaintiff’s Labor Law § 241 (6) claim. Indeed, defendants concede sufficient specificity, but contend that the regulation is inapplicable inasmuch as the ladder from which plaintiff fell had no wheels and, thus, was not a mobile platform or scaffold as referred to in the regulation. However, the record makes plain that the platform here had been modified by removing its casters and that it was, in fact, originally designed, manufactured and used as a mobile scaffold. In our view, a question of fact exists as to whether removal of the casters rendered the scaffold unstable and defective. We likewise find that Supreme Court did not err in denying the motion to dismiss plaintiffs common-law negligence and Labor Law § 200 causes of action. With regard to LRC’s assertion that such denial was error, we note only that LRC did not seek such relief in Supreme Court and, by its notice of appeal, limited its exception to Supreme Court’s denial of the motion with respect to the Labor Law § 240 (1) cause of action. Accordingly, LRC’s argument in this regard is not preserved for our review (see, Amato v State of New York, 241 AD2d 400, 402, lv denied 91 NY2d 805) and, under the circumstances, we do not choose to exercise our discretion to search the record. With regard to Laframboise, we agree with Supreme Court that there exist questions of fact regarding the ability and/or duty to direct, control or supervise plaintiff’s work, the existence of [563] which precludes summary judgment. Finally, we find no error in Supreme Court’s denial of Laframboise’s motion for a conditional order of indemnification. Cardona, P. J., Carpinello and Graffeo, JJ., concur.