Schlueter v. Health Care Plan, Inc.

Appellate Division of the Supreme Court of New York

Schlueter v. Health Care Plan, Inc.

168 A.D.2d 985, 565 N.Y.S.2d 639, 1990 N.Y. App. Div. LEXIS 16550

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 1990

StatusPublished

Cited by5 cases

This text of 168 A.D.2d 985 (Schlueter v. Health Care Plan, 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

Schlueter v. Health Care Plan, Inc., 168 A.D.2d 985, 565 N.Y.S.2d 639, 1990 N.Y. App. Div. LEXIS 16550 (N.Y. Ct. App. 1990).

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Order modified on the law and as modified affirmed without costs, in accordance with the follow[986]*986ing memorandum: Plaintiff, Richard Schlueter, suffered a back injury while standing on an aluminum stepladder attempting to install drywall over an interior doorway on a construction project. He commenced this action against defendants, the owner and general contractor of the project, based upon alleged violations of Labor Law §§ 200, 240 (1) and 241 (6). Supreme Court dismissed plaintiff’s complaint in its entirety, along with a third-party action commenced by defendants against plaintiff’s employer, a drywalling subcontractor.

Plaintiff’s claim alleging a violation of Labor Law § 240 (1) was properly dismissed because the manner in which plaintiff was injured does not meet the "falling worker or object test” adhered to by this court (see, Pietsch v Moog, Inc., 156 AD2d 1019, 1020; Staples v Town of Amherst, 146 AD2d 292, 294).

Supreme Court erred, however, by dismissing plaintiff’s claim brought pursuant to Labor Law § 241 (6). This section imposes a nondelegable duty upon owners and contractors for breach of the requirements therein, irrespective of their control or supervision of the work site (DaBolt v Bethlehem Steel Corp., 92 AD2d 70, appeal dismissed 60 NY2d 701). Here, questions of fact exist concerning whether the work area was arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein (Labor Law § 241 [6]). Defendants had a duty not only to protect plaintiff against unsafe equipment and lack of safety devices, but also against unsafe construction procedures (see, Mascellino v Buffalo Gen. Hosp., 123 AD2d 507), and defendants failed to establish as a matter of law that they discharged this duty.

Supreme Court also erroneously dismissed plaintiff’s claim based upon Labor Law § 200. Defendants failed to demonstrate, as a matter of law, that they did not exercise supervisory control over the work or that they did not have actual or constructive notice of an unsafe condition (see, Mascellino v Buffalo Gen. Hosp., supra; Nagel v Metzger, 103 AD2d 1, 8-9; DaBolt v Bethlehem Steel Corp., supra, at 72). Consequently, plaintiff’s claims based upon Labor Law §§ 241 (6) and 200 should be reinstated, along with the third-party actions.

All concur, except Lawton, J., who dissents, in part, and votes to affirm, in the following memorandum.

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Order modified on the law and as modified affirmed without costs, in accordance with the follow[986]*986ing memorandum: Plaintiff, Richard Schlueter, suffered a back injury while standing on an aluminum stepladder attempting to install drywall over an interior doorway on a construction project. He commenced this action against defendants, the owner and general contractor of the project, based upon alleged violations of Labor Law §§ 200, 240 (1) and 241 (6). Supreme Court dismissed plaintiff’s complaint in its entirety, along with a third-party action commenced by defendants against plaintiff’s employer, a drywalling subcontractor.

Plaintiff’s claim alleging a violation of Labor Law § 240 (1) was properly dismissed because the manner in which plaintiff was injured does not meet the "falling worker or object test” adhered to by this court (see, Pietsch v Moog, Inc., 156 AD2d 1019, 1020; Staples v Town of Amherst, 146 AD2d 292, 294).

Supreme Court erred, however, by dismissing plaintiff’s claim brought pursuant to Labor Law § 241 (6). This section imposes a nondelegable duty upon owners and contractors for breach of the requirements therein, irrespective of their control or supervision of the work site (DaBolt v Bethlehem Steel Corp., 92 AD2d 70, appeal dismissed 60 NY2d 701). Here, questions of fact exist concerning whether the work area was arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein (Labor Law § 241 [6]). Defendants had a duty not only to protect plaintiff against unsafe equipment and lack of safety devices, but also against unsafe construction procedures (see, Mascellino v Buffalo Gen. Hosp., 123 AD2d 507), and defendants failed to establish as a matter of law that they discharged this duty.

Supreme Court also erroneously dismissed plaintiff’s claim based upon Labor Law § 200. Defendants failed to demonstrate, as a matter of law, that they did not exercise supervisory control over the work or that they did not have actual or constructive notice of an unsafe condition (see, Mascellino v Buffalo Gen. Hosp., supra; Nagel v Metzger, 103 AD2d 1, 8-9; DaBolt v Bethlehem Steel Corp., supra, at 72). Consequently, plaintiff’s claims based upon Labor Law §§ 241 (6) and 200 should be reinstated, along with the third-party actions.

All concur, except Lawton, J., who dissents, in part, and votes to affirm, in the following memorandum.

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168 A.D.2d 985, 565 N.Y.S.2d 639, 1990 N.Y. App. Div. LEXIS 16550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlueter-v-health-care-plan-inc-nyappdiv-1990.

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