LaFontaine v. Albany Management, Inc.

257 A.D.2d 319, 691 N.Y.S.2d 640, 1999 N.Y. App. Div. LEXIS 6530
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 10, 1999
StatusPublished
Cited by16 cases

This text of 257 A.D.2d 319 (LaFontaine v. Albany Management, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LaFontaine v. Albany Management, Inc., 257 A.D.2d 319, 691 N.Y.S.2d 640, 1999 N.Y. App. Div. LEXIS 6530 (N.Y. Ct. App. 1999).

Opinion

OPINION OF THE COURT

Spain, J.

Labor Law § 240 (1) imposes a nondelegable duty on owners [320]*320and contractors and their agents to furnish, or cause to be furnished, suitable safety devices to give proper protection to workers engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240 [1]) and, regardless of whether the owners or contractors actually exercise supervision or control over the work, they may be held absolutely liable in damages for any breach of that duty which proximately caused injury to a worker so engaged (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; Haimes v New York Tel. Co., 46 NY2d 132, 136-137). The novel issue presented on this appeal is whether the protective shield of this statute is applicable to a worker who fell from a stepladder while engaged in removing and replacing wallpaper in a vacant apartment, an issue which takes this Court once again into uncharted waters regarding the scope of Labor Law § 240 (1). Because the wallpapering, by itself, was neither an activity specifically listed in Labor Law § 240 (1) nor incidental and necessary to any of the enumerated activities, we conclude that it was not covered by this statute.

Plaintiff Catherine La Fontaine (hereinafter plaintiff), a self-employed wallpaper hanger, was hired by defendant Albany Management, Inc., a property management company, to remove and replace wallpaper in several rooms of a single, recently vacated apartment in an apartment complex located in the Town of Guilderland, Albany County. The apartment complex was owned by defendant American Heritage Realty Partnership. On August 28, 1995, while plaintiff was removing a piece of wallpaper from the bathroom wall of the vacant apartment, the three-step stepladder on which she was standing allegedly slid, causing her to fall and sustain multiple injuries. Thereafter, plaintiff and her husband, derivatively, commenced actions, later consolidated, against defendants alleging that they failed to erect or furnish a proper safety device in violation of Labor Law § 240 (1). Supreme Court granted defendants’ motion for summary judgment, essentially concluding that wallpapering portions of one apartment was not within the ambit of Labor Law § 240 (1).

We affirm. We begin with the threshold proposition that the special statutory protection embodied in Labor Law § 240 (1) against the dangers of elevation-related hazards in the workplace only applies to workers who, at the time of the accident, are engaged in one of the statute’s enumerated activities or engaged in work sufficiently necessary and incidental to one of the enumerated activities (see, Joblon v Solow, 91 NY2d [321]*321457, 465; Lombardi v Stout, 80 NY2d 290, 295-296; Curley v Gateway Communications, 250 AD2d 888; Perchinsky v State of New York, 232 AD2d 34, 38, lv dismissed and denied 91 NY2d 830). The inquiry focuses on the “type of work the plaintiff was performing at the time of injury” (Joblon v Solow, supra, at 465). The activities or lines of employment which the Legislature has expressly chosen to protect by this provision, some of which have been added over the last century, are “the erection, demolition, repairing, altering, painting, cleaning or pointing” of a building or structure (Labor Law § 240 [1]). Notably, wallpapering is not, and never has been explicitly among the enumerated protected activities, although plaintiffs argue that it should be subsumed under either “painting” or “altering”. It is uncontroverted that, at the time of plaintiff’s injury, there was no construction or other activity enumerated in Labor Law § 240 (1) underway at the apartment building, and that the wallpapering was not performed incidental to any other enumerated activity. Importantly, in construing this statute, we endeavor—as we should—to ascertain its “fair and reasonable meaning” and to avoid “a construction which either extends or limits its provisions beyond that which was evidently intended” (Schapp v Bloomer, 181 NY 125, 128; see, Antes v Watkins, 112 App Div 860, 864).

The Court of Appeals has recently pronounced that altering, as contemplated by Labor Law § 240 (1), “requires making a significant physical change to the configuration or composition of the building or structure * * * [and] excludes simple, routine activities” (Joblon v Solow, 91 NY2d 457, 465, supra [emphasis in original]; accord, Weininger v Hagedorn & Co., 91 NY2d 958, 960). In adopting this exacting interpretation, the Court rejected a broader meaning of altering that would allow all changes in structures to qualify as alterations, thereby rendering superfluous the statute’s specifically enumerated activities (see, Joblon v Solow, supra, at 464-465 [rejecting interpretation of altering articulated in Cox v International Paper Co. (234 AD2d 757)]). Applying this rule to the facts herein presented, we are unable to conclude that removing and replacing wallpaper constitutes a significant physical change to the apartment’s or to the apartment building’s configuration or composition so as to fall within the statutory term altering (cf., Joblon v Solow, supra, at 465-466 [installing electric power supply]; Weininger v Hagedorn & Co., supra, at 960 [installing computer and telephone cables]).

Research reveals but one reported precedent at the trial level in which wallpapering was held to be a covered activity under [322]*322Labor Law § 240 (1), i.e., altering (see, Katz v Press Mgt. Corp., 117 Misc 2d 870). That decision is materially distinguishable from this case in that the wallpapering therein was an integral part of a larger building construction project and, in any event, the case was decided without the guidance provided by Joblon v Solow (supra). In our view, the paperhanging activity in which plaintiff was engaged is the type of cosmetic maintenance or decorative modification that is routinely provided to a vacant apartment between tenancies which does not effect a “significant physical change” to the composition or configuration of the apartment and does not qualify as altering under this statute (Joblon v Solow, supra, at 465).

Further, while plaintiff’s replacement of deteriorating or unsightly wallpaper may, in common terms, be viewed as a repair project, we cannot conclude that it constitutes repairing as contemplated by Labor Law § 240 (1) and the decisional law interpreting the parameters of that statutory term. It cannot be said that the existing wallpaper or walls behind it were broken, inoperable or not functioning properly; therefore, plaintiff was not engaged in repairing under Labor Law § 240 (1) (see, Smith v Shell Oil Co., 85 NY2d 1000, 1002; Izrailev v Ficara Furniture, 70 NY2d 813, 815; Carr v Perl Assocs., 201 AD2d 296, 297; see also, Leubner v McNeil, 261 AD2d 777; Craft v Clark Trading Corp., 257 AD2d 886, 887; Crossett v Schofell, 256 AD2d 881; Vernum v Zilka, 241 AD2d 885; Shapiro v ACG Equity Assocs., 233 AD2d 857; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592). Were we to conclude that every such modification to, or improvement of, a wall surface constitutes a repair we would “render superfluous such statutory terms as ‘painting’ and ‘pointing’ ” (Joblon v Solow, supra,

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Bluebook (online)
257 A.D.2d 319, 691 N.Y.S.2d 640, 1999 N.Y. App. Div. LEXIS 6530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafontaine-v-albany-management-inc-nyappdiv-1999.