Martinez v. City of New York

252 A.D.2d 545, 675 N.Y.S.2d 637, 1998 N.Y. App. Div. LEXIS 8391

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1998
• Status: Published

Opinions

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated June 27, 1997, as denied that branch of their motion which was for summary judgment against the defendants City of New York and New York City Board of Education on the issue of liability based upon a violation of Labor Law § 240 (1) and granted the cross motion of the those defendants to dismiss and/or for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

Walfredo Martinez, an environmental inspector, suffered injuries while inspecting asbestos at a public school in Queens. In an effort to measure a portion of a pipe extending between the top of a closet and the ceiling, he moved a desk against the closet, climbed onto the desk, held onto the top edge of the closet in an attempt to lift himself further, and fell.

At the time of the accident Martinez was engaged in inspecting and measuring classrooms in order to ascertain the extent of any asbestos damage in preparation for subsequent asbestos removal which, if required, was to be conducted by another entity. Martinez’s inspection job, therefore, was clearly not integral to the job of removing asbestos. In view of the strict liability imposed by Labor Law § 240 (1), “the statutory language must not be strained in order to encompass what the Legislature did not intend to include” (Karaktin v Gordon Hillside Corp., 143 AD2d 637, 638). Because his job was only to inspect, an activity not specifically enumerated in Labor Law § 240 (1), Martinez is not entitled to protection under the statute (see, Lundquist v Ditmas Realty Co., 230 AD2d 830; see also, Karaktin v Gordon Hillside Corp., supra; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311). Rosenblatt, J. P., Friedmann and Krausman, JJ., concur.