McMahon v. H S M Packaging Corp.

Appeals from an order of Supreme Court, Onondaga County (Nicholson, J.), entered September 27, 2001, which, inter alia,. granted in part plaintiffs’ cross motion seeking partial summary judgment on liability on the Labor Law causes of action. It is hereby ordered that the order so appealed from be and the same hereby is modified on the law by denying that part of plaintiffs’ cross motion seeking partial summary judgment on liability under Labor Law § 240 (1) against defendants H & S Realty Company, Homer Martin and Sheila Martin, individually and as general partners of H & S Realty Company, and Myriad Construction, Inc. and by granting in part the respective motion and cross motion of defendants seeking summary judgment and dismissing the Labor Law § 240 (1) causes of action and as modified the order is affirmed without costs. Memorandum: Supreme Court erred in granting that part of plaintiffs’ cross motion seeking partial summary judgment on liability on the Labor Law § 240 (1) causes of action against defendants H & S Realty Company (H & S Realty), Homer Martin and Sheila Martin, individually and as general partners of H & S Realty (Martins), and Myriad Construction, Inc. (Myriad). In addition, the court erred in denying those parts of the respective motion and cross motion of defendants seeking summary judgment dismissing the section 240 (1) causes of action. James J. McMahon (plaintiff), the president of a plumbing, heating, ventilation and air conditioning (HVAC) corporation, entered into a contract to provide the necessary plumbing and HVAC work to service a new printing press installed by [1013] Myriad, the general contractor, for defendant H S M Packaging Corporation (H S M). On the day of his fall, plaintiff had been installing pipes in the basement level of a building leased by H S M from H & S Realty. Myriad’s project coordinator asked plaintiff to assist him in inspecting potential sites on the roofs of H S M’s three adjoining buildings for the future location of a condenser unit for the new press. The two men climbed an extension ladder to the adjoining roofs, and plaintiff fell from one of the roofs while attempting to determine whether it might be a suitable location for the condenser unit. Under the circumstances of this case, we agree with defendants that the mere inspection of a potential construction site does not fall within the categories of work enumerated in section 240 (1) (see Martinez v City of New York, 93 NY2d 322, 326). Plaintiffs describe the nature of plaintiffs activity at the time of the accident as a site inspection performed before or during construction work, which they contend comes within the ambit of section 240 (1) (see Reisch v Amadori Constr. Co., 273 AD2d 855, 856; Aubrecht v Acme Elec. Corp., 262 AD2d 994). However, the Court of Appeals has explicitly rejected analysis that “focuse[s] on whether plaintiffs work was an ‘integral and necessary part’ of a larger project within the purview of section 240 (1)” (Martinez, 93 NY2d at 326). Indeed, the Court wrote that “[s]uch a test improperly enlarges the reach of the statute beyond its clear terms” (id.). The plaintiff worker’s employer in Martinez was hired to locate asbestos in school buildings and to mark it for removal. The Court determined that, “[w]hile the reach of section 240 (1) is not limited to work performed on actual construction sites * * *, the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.’ * * * [P]laintiffs work as an environmental inspector during phase one [of a two-phase project] was merely investigatory, and was to terminate prior to the actual commencement of any subsequent asbestos removal work” (id. [emphasis added]). Here, as in Martinez, the activity in which plaintiff was engaged at the time of his fall was merely investigatory, i.e., it entailed merely planning for future construction work, before defendants had the incentive to install safety devices (see generally Ciesielski v Buffalo Indus. Park, 299 AD2d 817). Plaintiffs work did not take place during the “erection, demolition, repairing, [or] altering * * * of a building or structure” (§ 240 [1]), nor did it involve any such activities. Thus, plaintiff was not “a person employed to carry out the [construction work] as that term is used in section 240 [1014] (1)” (Martinez, 93 NY2d at 326 [internal quotation marks omitted] ; see also Adair v Bestek Light. & Staging Corp., 298 AD2d 153). We therefore modify the order by denying that part of plaintiffs’ cross motion seeking partial summary judgment on liability under Labor Law § 240 (1) against H & S Realty, the Martins and Myriad, and by granting in part the respective motion and cross motion of defendants seeking summary judgment and dismissing the section 240 (1) causes of action. All concur except Kehoe and Burns, JJ., who dissent in part and vote to affirm in the following memorandum.