Soto v. J. Crew Inc.

998 N.E.2d 1045, 21 N.Y.3d 562
CourtNew York Court of Appeals
DecidedOctober 10, 2013
StatusPublished
Cited by62 cases

This text of 998 N.E.2d 1045 (Soto v. J. Crew Inc.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soto v. J. Crew Inc., 998 N.E.2d 1045, 21 N.Y.3d 562 (N.Y. 2013).

Opinion

OPINION OF THE COURT

Graffeo, J.

Plaintiff, an employee of a commercial cleaning company hired to provide janitorial services for a retail store, was injured when he fell from a four-foot-tall ladder while dusting a six-foot-high display shelf. He brought a Labor Law § 240 (1) action against J. Crew, the retail store, and The Mercer I L.L.C., the building owner. Both lower courts held that defendants were entitled to summary judgment because the activity plaintiff was engaged in at the time of his fall was not the type of “cleaning” covered by Labor Law § 240 (1). Because we agree, we now affirm.

Defendant J. Crew hired Whelan Cleaning Services to provide custodial services at a retail store located in Lower Manhattan. Whelan assigned plaintiff Jose Soto responsibility for daily maintenance of the store. Each day, Soto would report for work several hours before the establishment opened to ready the premises for business, vacuuming, mopping, cleaning bathrooms, emptying garbage and the like. After the store opened, and for the remainder of his shift, he did spot cleaning, tidying shelves, dusting, wiping down the entrance door, sweeping up debris and scraping gum from the floor, as necessary.

On the day of the incident, a J. Crew employee noticed that a six-foot-high wooden shelf used to display clothing was dusty and she asked Soto to clean it. Equipped with a “high duster” (a Swiffer duster with a long handle), Soto—who is five feet, 10 inches tall—positioned a four-foot-high A-frame ladder on the [565]*565floor in front of the shelf. It is undisputed that the ladder was in proper working order and that Soto locked it in the open position prior to climbing the steps. As he was dusting the shelf, however, both Soto and the ladder fell over, allegedly causing Soto to injure his back, knee and elbow.

Soto commenced this personal injury action against J. Crew and the building owner seeking recovery under Labor Law § 240 (1), among other theories. After discovery, defendants moved for summary judgment, asserting that Soto’s cleaning activities constituted “routine maintenance” and not the type of cleaning protected by the statute. They further contended that, even if Soto had been engaged in a covered activity, he failed to establish that he was necessarily exposed to an elevation-related risk or that the ladder was defective or inappropriate to the assigned task. Alternatively, defendants noted that Soto was an insulin-dependent diabetic with other health conditions that might have contributed to the fall and that further discovery was warranted to ascertain the extent to which the fall could be attributed to his medical conditions.

Soto opposed the motions and cross-moved for partial summary judgment on liability on the Labor Law § 240 (1) claim. He argued that the statute applied because he was engaged in “cleaning” and was required to dust a shelf at an elevated level, contending that all commercial cleaning is covered by the statute. He also submitted the affidavit of an engineer who opined that Soto was not provided with proper protection for his elevated work because the ladder was not secured in some manner, such as being held by another store employee.

Supreme Court denied Soto’s cross motion and granted summary judgment to defendants dismissing the Labor Law § 240 (1) claim, reasoning that the statute does not apply to workers employed on a daily basis to conduct routine commercial cleaning, such as the dusting, sweeping, mopping and general tidying at issue here (2011 NY Slip Op 32518[U] [2011]). The Appellate Division unanimously affirmed in two separate writings (95 AD3d 721 [1st Dept 2012]). In a memorandum, the majority held that “[t]he dusting of the shelf constituted routine maintenance and was not the type of activity that is protected under the statute” (id. at 721). The concurrence agreed that dismissal of the claim was required on constraint of this Court’s then-recent decision in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521 [2012]), which denied recovery to a manufacturing-plant employee injured while cleaning a large wall module at the [566]*566conclusion of the manufacturing process. The Appellate Division granted Soto leave to appeal to this Court (2012 NY Slip Op 85967[U] [2012]).

Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). To recover, the plaintiff must have been engaged in a covered activity—“the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240 [1]; see Panek v County of Albany, 99 NY2d 452, 457 [2003])—and must have suffered an injury as “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). The threshold issue presented in this appeal concerns the first question—whether Soto was engaged in “cleaning” within the meaning of the statute.

Prior to our 2007 decision in Broggy v Rockefeller Group, Inc. (8 NY3d 675 [2007]), there were several appellate decisions holding that cleaning activities were covered under the statute only if they were performed in connection with building construction, demolition, repair work or comparable activities that made a significant physical change to the premises. This conclusion was understandable given that the primary legislative concern underlying Labor Law § 240 (1) was the protection of construction workers who often face significant elevation-related dangers on a work site, even when engaged in a task that would not be particularly hazardous if performed in a different context. We nonetheless rejected that view in Broggy, noting that “cleaning” is separately listed as a covered activity and had been “expressly afforded protection under section 240 (1) whether or not incidental to any other enumerated activity” (id. at 680). There, plaintiff had been tasked with cleaning the 9- or 10-foot-tall interior windows of a commercial building. Noting that we had previously held that cleaning the exterior of the windows of a commercial or public building is a covered activity (see Bauer v Female Academy of Sacred Heart, 97 NY2d 445 [2002]), we saw no basis to distinguish the cleaning of interior windows for Labor Law § 240 (1) purposes. Viewing the statute in the context of the larger legislative scheme, it would have been anomalous for the legislature to categorically exclude [567]*567commercial window washers given the elevation-related risks they typically encounter and the special protection they have long enjoyed under the Labor Law (see Labor Law § 202 [imposing a duty to “provide . . . safe means for the cleaning of the windows and of exterior surfaces” of public buildings]).

We went on to hold in Broggy that the complaint had properly been dismissed because plaintiff failed to surmount the second Labor Law § 240 (1) hurdle that required proof in admissible form that the task he had been assigned necessarily created “an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” (id. at 681).

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Bluebook (online)
998 N.E.2d 1045, 21 N.Y.3d 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-j-crew-inc-ny-2013.