Vernieri v. Empire Realty Co.

219 A.D.2d 593, 631 N.Y.S.2d 378
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 11, 1995
StatusPublished
Cited by45 cases

This text of 219 A.D.2d 593 (Vernieri v. Empire Realty Co.) 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
Vernieri v. Empire Realty Co., 219 A.D.2d 593, 631 N.Y.S.2d 378 (N.Y. Ct. App. 1995).

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Milano, J.), dated January 19, 1994, as granted the branch of the motion of the defendant Empire Realty Co. which was for summary judgment dismissing the plaintiff’s cause of action to recover damages pursuant to Labor Law § 241 (6) and all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Empire Realty Co. (hereinafter Empire) is the owner of a building located on Northern Boulevard in Long Island City and had leased a portion of the building to Signs & Decal Corp. (hereinafter Signs & Decal), which maintained its business offices and a workshop on the premises for the manufacture and fabrication of signs.

[594]*594Sometime in 1988, Signs & Decal retained the plaintiffs employer, Interboro Sign & Maintenance Co. (hereinafter Interboro Sign), to hoist and permanently affix to the exterior of the building a sign consisting of five letters spelling the word "signs”.

The sign consisted of individual letters, each approximately five to six feet high, manufactured of heavy plywood onto which colored laminate had been affixed. The letters were then attached together to spell out the word "signs” through the use of bracketing attached to angle irons. The fully assembled sign was approximately 28 feet long and, depending upon the testimony, weighed anywhere from 350 to 1,000 pounds. This five-letter sign was to be an addition to an existing sign already affixed to the front of the building.

The sign had been fabricated and fully assembled by employees of Signs & Decal who had then placed the sign on dollies owned by Signs & Decal for transport out to the street. The sign was placed upright on the dollies.

On June 30, 1988, at approximately 2:30 p.m., the plaintiff Alfonse Vernieri assisted in moving the sign from the workshop to the sidewalk, a distance of approximately 60 to 80 feet. As they approached the doorway leading to the sidewalk, the plaintiff felt the sign beginning to topple over and allegedly injured his back in trying to keep the sign from falling over.

In April 1990, the plaintiff commenced this personal injury action against Empire, the owner of the building, and Signs & Decal, the tenant in the building. In his bill of particulars, the plaintiff alleged that Empire violated Labor Law §§ 200, 240, and 241 (6) and the rules and regulations promulgated thereunder including Rule 23 of the Industrial Code and a regulation of the Occupational Safety and Health Administration (hereinafter OSHA) (see, 29 CFR 1910.176 [a]). After serving its answer, Empire impleaded the plaintiff’s employer, Interboro Sign, as a third-party defendant. The defendants cross-claimed against each other.

After discovery was completed, Empire moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it. The Supreme Court granted Empire’s motion.

Although the plaintiff’s bill of particulars alleged violations of Labor Law §§ 200, 240, and 241 (6), on appeal the plaintiff limits his theory of liability to Labor Law § 241 (6). That statute provides as follows:

"All contractors and owners and their agents, except owners [595]*595of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements * * *
"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The board may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith”.

The threshold question that must be answered is whether the plaintiff was engaged in a type of work which falls within the scope of Labor Law § 241 (6), specifically, whether the injury occurred in an area "in which construction, excavation or demolition work is being performed” (Labor Law § 241 [6]). Though this language differs significantly from the far more encompassing language of Labor Law § 240 (1) which covers "the erection, demolition, repairing, altering, painting, cleaning or painting of a building or structure”, the courts have generally held that the scope of Labor Law § 241 (6) is governed by 12 NYCRR 23-1.4 (b) (13) which defines construction work expansively: "All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” (12 NYCRR 23-1.4 [b] [13]; see also, e.g., Kesselbach v Liberty Haulage, 182 AD2d 741).

In this case, it is clear that at the time the plaintiff was allegedly injured, there was no "construction, excavation or demolition work” (Labor Law § 241 [6]) being performed in the building. The plaintiff was participating in moving a sign owned by the defendant Signs & Decal from the back of the building to the front. This was not construction. The question of whether the act of actually affixing the sign to the front of the building would or would not be construction under the statute is not pertinent here because the affixing had not yet begun. All that was being done at the time was the moving of the sign from its place of manufacture to a new destination.

In Jock v Fien (80 NY2d 965, 966), the Court of Appeals held that the plaintiff who had fallen "from an upright steel mold that he was preparing during his customary occupational work of fabricating a concrete septic tank”, was not covered under [596]*596Labor Law § 241 (6) because he was "engaged, in a normal manufacturing process" (Jock v Fien, supra, at 967). To the extent that Signs & Decal manufactured signs in its workshop which must of necessity be moved out of the manufacturing portion of the building, such moving can be viewed as part of the normal manufacturing process of the defendant Signs & Decal (see also, Warsaw v Eastern Rock Prods., 193 AD2d 1115).

In Vilardi v Berley (201 AD2d 641, 643-644), this Court held that the deceased was not covered by Labor Law § 241 (6) because he had not been involved in construction, excavation, or demolition work where he had been hired to move a printing press from one location to another. The fact that the move was to be accomplished through a window from which glass had been removed to make passage possible was insufficient to make the move a covered construction activity (Vilardi v Berley, supra, at 642-643). In the case at hand, the task involved was moving an object from one location to another, just as in Vilardi.

In DeTommaso v Fitzgerald Constr. Corp. (138 AD2d 341, 343), this Court held that liability could not be imposed under Labor Law § 241 (6) "since the work in question was renovation

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Bluebook (online)
219 A.D.2d 593, 631 N.Y.S.2d 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vernieri-v-empire-realty-co-nyappdiv-1995.