Sponholz v. Benderson Property Development, Inc.

Appellate Division of the Supreme Court of New York

Sponholz v. Benderson Property Development, Inc.

266 A.D.2d 815, 697 N.Y.S.2d 432, 1999 N.Y. App. Div. LEXIS 11847

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

DecidedNovember 12, 1999

StatusPublished

Cited by7 cases

This text of 266 A.D.2d 815 (Sponholz v. Benderson Property Development, 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.

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Sponholz v. Benderson Property Development, Inc., 266 A.D.2d 815, 697 N.Y.S.2d 432, 1999 N.Y. App. Div. LEXIS 11847 (N.Y. Ct. App. 1999).

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—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Wayne E. Sponholz (plaintiff), a technician employed by third-party defendant, Commercial Refrigeration, was sent by his employer to inspect and/or repair heating and air conditioning units at a building owned by defendant Benderson Development Company, Inc. (Benderson). Benderson was in the process of renovating the interior of the building. Plaintiff used an existing wooden stairway to reach the units on the second floor. After repairing a gas leak in one of the units, plaintiff began to descend the stairs when they collapsed and he fell 12 to 15 feet to the first floor.

We conclude that defendants are entitled to summary judgment dismissing the Labor Law § 240 (1) claim; thus, we modify the order accordingly (see, CPLR 3212 [b]). The stairway that allegedly collapsed and thus caused plaintiffs injury was undisputedly a permanent passageway between two parts of the building, and was not a tool or device employed solely to provide access to an elevated worksite (see, Williams v City of Albany, 245 AD2d 916, appeal dismissed 91 NY2d 957; Dombrowski v Schwartz, 217 AD2d 914; Ryan v Morse Diesel, 98 AD2d 615, 615-616; cf., Franks v Meadowlakes Dev. Corp., 256 AD2d 1141; Westcott v Shear, 161 AD2d 925, appeal dismissed 76 NY2d 846). That permanent passageway was not transformed into a temporary statutory device within the meaning of Labor Law § 240 (1) because it was to be removed in the course of renovation. ‘‘[N] either the fact that the staircase [may have been] ‘altered’ somewhat from its initial condition, nor its imminent demolition, warrants treating it as a ‘temporary’ structure used only to afford workers access to a worksite” (Williams v City of Albany, supra, at 917). Foufana v City of New York (211 AD2d 550), relied upon by the dissent, is inapposite because the old concrete stairway used for access to an excavation pit in that case had previously been buried in a [816]*816prior demolition and was unearthed while the pit was being dug. That stairway was thus a temporary device used for access to the excavation, not a permanent passageway within a structure (see, Foufana v City of New York, supra, at 550-551).

All concur except Pine, J. P., and Callahan, J., who dissent and vote to reverse the order insofar as appealed from in the following Memorandum.

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—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Wayne E. Sponholz (plaintiff), a technician employed by third-party defendant, Commercial Refrigeration, was sent by his employer to inspect and/or repair heating and air conditioning units at a building owned by defendant Benderson Development Company, Inc. (Benderson). Benderson was in the process of renovating the interior of the building. Plaintiff used an existing wooden stairway to reach the units on the second floor. After repairing a gas leak in one of the units, plaintiff began to descend the stairs when they collapsed and he fell 12 to 15 feet to the first floor.

We conclude that defendants are entitled to summary judgment dismissing the Labor Law § 240 (1) claim; thus, we modify the order accordingly (see, CPLR 3212 [b]). The stairway that allegedly collapsed and thus caused plaintiffs injury was undisputedly a permanent passageway between two parts of the building, and was not a tool or device employed solely to provide access to an elevated worksite (see, Williams v City of Albany, 245 AD2d 916, appeal dismissed 91 NY2d 957; Dombrowski v Schwartz, 217 AD2d 914; Ryan v Morse Diesel, 98 AD2d 615, 615-616; cf., Franks v Meadowlakes Dev. Corp., 256 AD2d 1141; Westcott v Shear, 161 AD2d 925, appeal dismissed 76 NY2d 846). That permanent passageway was not transformed into a temporary statutory device within the meaning of Labor Law § 240 (1) because it was to be removed in the course of renovation. ‘‘[N] either the fact that the staircase [may have been] ‘altered’ somewhat from its initial condition, nor its imminent demolition, warrants treating it as a ‘temporary’ structure used only to afford workers access to a worksite” (Williams v City of Albany, supra, at 917). Foufana v City of New York (211 AD2d 550), relied upon by the dissent, is inapposite because the old concrete stairway used for access to an excavation pit in that case had previously been buried in a [816]*816prior demolition and was unearthed while the pit was being dug. That stairway was thus a temporary device used for access to the excavation, not a permanent passageway within a structure (see, Foufana v City of New York, supra, at 550-551).

All concur except Pine, J. P., and Callahan, J., who dissent and vote to reverse the order insofar as appealed from in the following Memorandum.

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266 A.D.2d 815, 697 N.Y.S.2d 432, 1999 N.Y. App. Div. LEXIS 11847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sponholz-v-benderson-property-development-inc-nyappdiv-1999.

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