New York State Court of Claims

New York State Court of Claims

RUSS v. THE STATE OF NEW YORK, #2001-001-529, Claim No. 97240


Synopsis



Case Information

UID:
2001-001-529
Claimant(s):
TIMOTHY RUSS AND MICHELLE RUSS
Claimant short name:
RUSS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97240
Motion number(s):

Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Ziller, Marsh & Lang, LLPBy: Craig Small, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 22, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
At approximately 1:55 p.m. on August 20, 1997, claimant Timothy Russ ("claimant"),[1]
an employee of Northern Fire Systems, Inc. ("Northern"), a company that sells and services fire alarm systems (T 23),[2] lost his balance as he walked across joists in the Glens Falls Armory ("the Armory") and fell through a fiberboard ceiling panel, landing on the floor some nine feet below. He subsequently sought recovery from defendant State of New York ("defendant" or "the State"), the Armory's owner, for alleged violations of Labor Law §§ 200, 240 (1) and 241 (6) and for common-law negligence (claim, filed October 24, 1997).
I. Factual Setting
A. The Armory and its fire detection and alarm system
The Armory is a fairy-tale castle-like confection of stone and brick with peaked slate roofs, turrets and a crenellated tower (T 144-146; claimant's exh. 1; defendant's exh. D). Two National Guard units train in this building (T 226).

The main wing of the Armory has a basement, first and second floors (claimant's exh. 1). A two-story "drill hall" fills most of the main wing's first and second floors (
id.), and is overlooked by balconies on two opposite sides of the second floor. The Armory's tower wing is comprised of a basement, first and second floors and an attic, or third floor (id.).
An enclosure in a portion of the attic is divided into at least two rooms, an office and a learning center (T 58, 152-153, 217; claimant's exh. 12; defendant's exhs. B and C). This enclosure has walls, doors and ceilings at a height of roughly eight feet, eight inches (T 223).

The attic enclosure's ceilings are either lath and plaster or fiberboard panels, which in both cases are affixed to two inch by six inch or two inch by eight inch wooden joists (
id., T 64; defendant's exhs. E, F, G and J). The joists to which the fiberboard panels are attached are spaced slightly more widely apart than are those supporting the lath and plaster (T 156; defendant's exhs. E and F). In addition, the joists are crisscrossed with conduits; a larger diameter pipe visibly wends its way through several feet of open space between the joists and the rafters supporting the peaked roof overhead (claimant's exhs. 3 and 4; defendant's exhs. E and J).[3]
Sometime between September 1991 and November 1993, a fire detection and alarm system was installed at the Armory by Triangle Electric (T 177, 180). By purchase order dated January 9, 1995, Northern was hired to clean and test this fire detection and alarm system to insure its proper functioning and compliance with the National Fire Protection Association Code (T 196; claimant's exh. 20). The two Northern employees who performed this six-hour job on January 19, 1995 arrived at the Armory with their own equipment, including extender poles for reaching and removing smoke heads, as well as an inventory or checklist of the types and locations of all the devices comprising the Armory's fire detection and alarm system, and a floor plan depicting where these devices were located (T 190-191, 199, 230, 241; claimant's exh. 21).

The Armory subsequently contracted with New York Fire and Signal to expand the original system
to add more smoke and heat detectors and a beam detector in the drill hall (T 181-182, 193; claimant's exh. 14). New York Fire and Signal contracted with Northern, as the authorized representative for the fire detection and alarm system, to make the programming changes necessitated by this expansion and to test both the newly installed devices and a random sample of the existing devices (T 193; claimant's exh. 22).
B. Claimant's background and why he went to the Armory on August 20, 1997
In early August 1997, William D. McMillen ("McMillen"), the Armory's maintenance assistant (T 128), telephoned Northern to place a work order to repair the beam detector in the drill hall and to conduct a complete inspection of the Armory's fire detection and alarm system (T 196, 200). McMillen, who had worked at the Armory since March 1990, interrupted by a two-year layoff, was throughout his employment generally responsible for taking care of the building (T 129-131).

On the morning of August 20, 1997, claimant arrived at Northern's office and "picked up a test filter and the owner's manual for the beam detectors, spoke with my supervisor and he said, head up to the Glens Falls Armory. I'm not certain if he gave me the address or just physical directions on how to get to it, and head up there, take care of that problem and see if you've got time to do a P.M. [preventive maintenance]" (T 25;
see also, T 89). Claimant understood that a beam detector at the Armory was "not operating, it was in trouble, it was causing trouble, it was swinging. . . . that was the cause of the problem that prompted me to go to the building" (T 26; see also, T 90). He described preventive maintenance of a fire detection and alarm system as the "inspect[ion] and test[ing] [of] all fire alarm appliances"; i.e., "[b]ells, pole stations, smoke detectors, heat detectors, any appliance that's connected to the fire alarm has to be inspected and periodically maintained" (T 28).
Claimant had worked at Northern
as a technician since January 1997 (T 20, 23). He had previously worked in similar jobs in the fire detection and alarm business for roughly three or four years (T 22, 88), and had completed considerable specialized training. Specifically, he was certified by the New York City Fire Department and the National Institute for Certified and Engineering Technologies to install and service fire detection and alarm equipment (T 19-22, 86-88).
When claimant was directed to go to the Armory, he "had no understanding" as to the lay-out of the building or where the fire alarm appliances or devices were located within it; he had never been there before (T 28). The equipment that claimant took with him included small aerosol cans of artificial smoke to activate smoke detectors, small aerosol cans of compressed air to clean the detectors and a tool belt, perhaps with a mini-mag light, a small flashlight (about 6 or 8 inches long and the width of a magic marker) with no more than a two-foot range (T 29-30;
cf., T 96-97).
Claimant did not bring any ladders because it was his understanding that the "[f]acility would provide ladders" needed in order for him to reach smoke detectors (T 30); and, he also acknowledged, "[o]n most cases" he preferred to have ladders delivered to a job by his employer (T 96). Northern did not provide claimant with any diagrams or checklists of the devices installed in the Armory (T 30); he did not bring any extender poles, which he described as lamp changing poles that were topped with special cups of varying sizes and shapes designed to fit differently sized and shaped detector heads (T 41-42). Claimant did not "particularly like those poles and using them," finding them to be unreliable and damaging to a device's base as well as impractical for reaching appliances not more or less directly above where a technician stood (T 41;
see also, T 42, 111-112, 123).
C. How claimant went about his work at the Armory
When claimant arrived at the Armory at about 9:00 or 9:15 a.m. on this nice, sunny August day (T 38), he was greeted at the door by McMillen (T 31, 198-199). He introduced himself by saying "I'm here to take a look at your fire alarm system," to which McMillen replied "Oh great, I've been waiting for you. It's been a while since you guys [have] been here" (T 31). According to claimant, upon his arrival McMillen made the telephone call necessary to disconnect the system (T 32-33); "gave [him] a spot" to put down his tool belt (T 33); and showed him where the beam detectors were located, retrieved a copy of the checklist that the two Northern employees had brought with them for the 1995 service call (claimant's exh. 28), made a copy of it and showed him a floor plan (claimant's exh. 1) depicting the system as subsequently expanded (T 34, 199-200). Claimant struck McMillen as unprepared: "I asked him what he brought with him. When I realized he had no paperwork and no ladders, I went to--I was a little surprised at that because he--the other people [who serviced the fire detection and alarm system in 1995] didn't require ladders" (T 199;
see also, T 230, 241).
Claimant first went to the beam detector in the drill hall, which was located off a balcony of the main wing's second floor (T 36-37, 240). He started off at the beam detector because "[t]hat was the reason I was sent to the building in the first place" (T 37). Moreover, claimant "had to ask [McMillen] if there was anything else that he knows of that isn't working, and I believe he said, no. He doesn't know of any other problems. So the lineal beam detector was the only known problem on the system at the time" and "would take precedence" over the preventive maintenance work (T 91).

Claimant spent about one and one-half to two hours repairing the beam detector (T 37). He then took a short break and discussed what to do next with McMillen:
We discussed where to go from here, how much time was left in the day, size of the system, you know, things of that nature. I was getting information from him on this. How big the system was. I hadn't walked the whole building. I hadn't had any blueprints other than [claimant's exh. 28], and gauging by that, I was trying to determine whether or not it was even smart to start doing the P.M. at this time. There should have been enough time to do it. There's a lot of heat detectors in there. . . .
(T 37-38).
Claimant, in fact, decided to perform the preventive maintenance work and relied on McMillen to escort him throughout the Armory, unlocking doors to secure rooms where Federal property belonging to the National Guard units was stored (T 98, 117, 119, 201-202, 225-226), although the "427th Medical Unit was not available to unlock their storage areas, so . . . it would require a second call back to complete the job" (T 226;
see also, T 93-94); pointing out the location of the various fire alarm devices to claimant; and fetching and positioning the Armory's six-, ten- and 12-foot ladders for claimant's use in reaching these devices (T 200-203, 226-227). After positioning a ladder, McMillen routinely climbed up "first to make sure that it was the proper height that [claimant] needed to do his job safely and that it was in proper position, that he didn't have to stretch too far" (T 203).
Claimant generally began the preventive maintenance work on the Armory's lower floors (T 40, 117-119, 240-241), checking the fire alarm appliances on each floor successively in "a sweeping pattern" as was his custom (T 104). Claimant carried out his tasks by using a small screwdriver to remove a detector's head from its base, the can of compressed air to clean the head, the can of smoke to activate the head to verify that the chamber was working, the checklist provided to him by McMillen (claimant's exh. 28) and a pen and pencil with which to mark off his findings on the checklist (T 46, 96).

McMillen was both an interested observer and a helper. Claimant recalls that McMillen asked him questions about what he was doing--for example, "why I didn't have those poles that the other technicians would use" (T 41)--and was generally with him while he worked, although McMillen left periodically to answer the door or the telephone or to reset the system for claimant (T 37, 41). For his part, McMillen recalls that claimant, in fact, started his preventive maintenance work in the first floor foyer "because that was the only point on the first floor when we first started out where I actually watched to see how he took the smoke detector apart for the first couple of times to see what his procedure was for cleaning it just for my curiosity['s] sake, and then after that, I was too busy moving ladders to really watch him" (T 240-241).

Claimant needed McMillen's help to perform the preventive maintenance work because "I wouldn't have had a ladder. The doors were all--there were doors that were locked all over the place" (T 39;
see also, T 117, 119). By claimant's account, McMillen "had the keys, he had the ladders, and he had the knowledge of the building," but once McMillen took him to a fire detection or alarm device, he could "take it from there" (T 117). According to McMillen, he gave claimant "quite a bit of information. I'm not sure how helpful I was. You know, he's the expert in his field and, you know, I assisted him quite a bit, but not in the technical end of it" (T 135).
D. Claimant's accident
Claimant and McMillen eventually reached the third floor attic of the Armory's tower wing, and McMillen pointed out the location of various fire alarm appliances, including three detectors positioned along a conduit attached to a rafter, two of which were located above the joists of the attic enclosure (i.e., in the raised area,
see, n 3, supra) (T 47, 206-207, 232; claimant's exhs. 1 and 2). Claimant testified that there was no plan of attack agreed upon between McMillen and him for the third floor, and that he started to clean and test the detectors on the third floor without knowing where McMillen was at the time (T 48, 78, 103-104).
After cleaning and testing about three or four heads (T 48), claimant used a ladder to gain access to the raised area (
T 110; claimant's exh. 12; defendant's exh. B). Claimant then "went down" the joists, with his "legs spread apart across the joists" to the first of the two smoke detectors in the raised area (T 75), carrying a small pencil-type screwdriver and a can of smoke (T 75-76). He "tested the smoke detector in place first to verify proper alarm signal, . . . removed the head and put the screwdriver back in [his] pocket. . . . might have even put the smoke can back in [his] pocket . . . and then walked back" to the edge of the raised area where he had gained access to it and had left a clipboard with the checklist (T 76). Claimant next made a return trip over the joists to replace the first smoke detector in the raised area, taking his can of air with him and putting his can of smoke into either his back right-hand or his left-hand pocket; he also had his screwdriver in a pocket (T 76-77).
After replacing the first smoke detector, claimant walked across the joists to the second smoke detector in the raised area, grasping the beam overhead with his right hand as he did so (T 112). When asked if he had anything in his left hand, he replied "[a] can of air or smoke. I don't remember which can was under my arm [i.e., tucked in his shirt] keeping my [left arm] free" (T 113). He was "right there ready to go at" the second smoke detector when something moved or his foot slipped and he "felt like you would feel like when you take a slip on the ice where you get that feeling, and that was it" (T 77): he fell between joists, crashed through a fiberboard ceiling panel and landed on the floor of the office about nine feet below, coming to rest in a sitting position wedged against the wall (T 78; claimant's exh. 25).

Claimant described the lighting in the raised area as "good" and "okay," commenting that he "was able to see the joists and it looked safe" (T 73). He testified that there was light from windows behind him (
id.; see, claimant's exh. 1, depicting windows referred to); he did not recall whether any incandescent lighting had been turned on (T 111); he was able to see the joists and the detectors on the conduit and could see for a distance of about ten feet (T 74). He did not ask McMillen for a "platform" to place over the joists because "[i]t appeared to be safe" (T 111). He knew that if he stepped off a joist he would fall through the ceiling (T 112).
McMillen testified that claimant and he brought two ladders, a six-foot ladder and a 12-foot ladder, to the third floor of the tower wing (T 206, 214, 241). He unlocked all the rooms, pointed out all the smoke heads to claimant "[j]ust like in the past" and "at that time, [claimant] took the six-foot ladder that we brought up with us and started doing the smoke heads in the office areas" while McMillen "went down to the landing between the second and third floor and retrieved the 12-foot ladder and was setting it up in the tower" (T 206;
see also, T 213-215). McMillen had climbed approximately half-way up the 12-foot ladder when he heard a thud and claimant's loud moan (T 217).
Because McMillen "had control of the 12-foot stepladder which would have given safe access to the raised area," he "had no idea" that claimant intended to do what he did (T 214;
see also, T 241-242), and "never dreamed [claimant] would use a short ladder there" (T 242). McMillen had expected that claimant, after checking those fire alarm devices on the third floor which were readily accessible with the six-foot ladder, would join him in the tower because "he didn't have a ladder to safely reach the raised area" (T 229; see also, T 246-247), and "the procedure we had all day is that he would do one area which cut off the first ladder that he was using, and then I would reposition the taller ladder so he could use [it]" (T 216).
McMillen emphasized that he "did not give [claimant] permission" to go into the raised area (T 211;
see also, T 228-229) and had not discussed such a course of action with him (T 208). McMillen insisted that he was not supervising claimant (T 245), but rather felt "a large responsibility for his safety" because "[claimant] was using my ladders" (T 244); and that he would not have given claimant permission to go into the raised area without first inspecting it himself for purposes of determining, for example, whether a flashlight was required (id.; see also, T 242).
McMillen testified that "[t]here was no natural light as far as sunlight from windows going into [the raised area]. All the light was from incandescent bulbs" (T 209;
but see, claimant's exh. 1). According to McMillen, the two smoke detectors positioned on the conduit in the raised area were nonetheless "clearly illuminated," although the footing below "had a lot of shadows" and was "very dimly lit" (T 216; see also, T 210).
II. Discussion
A. The motion for partial summary judgment and its appeal
Claimant earlier moved for partial summary judgment on the issue of the State's liability with respect to his causes of action pursuant to Labor Law §§ 240 (1) and 241 (6). As to the latter, claimant contended that defendant had as a matter of law violated 12 NYCRR 23-1.30, entitled "Illumination."

The Honorable James P. King denied the motion. Judge King held that claimant was not engaged in "altering," "repairing" or "cleaning" a building or structure as those terms are defined under Labor Law § 240 (1) since his activities at the Armory were most properly classified as "routine maintenance"; and that "[w]ith respect to that portion of the motion seeking summary judgment on the cause of action asserting violation of Labor Law § 241 (6), claimants [Timothy Russ and Michelle Russ] have not submitted proof sufficient to establish, as a matter of law, that the level of light available in the work area was in violation of 12 NYCRR § 23" (
Russ v State of New York, Claim No. 97240, Motion No. M-58177 [King, J.], Feb. 11, 1999, at 14).
On appeal to the Third Department, claimant contended only that the Court of Claims had erred in concluding that he was not engaged in either "repairing" or "cleaning" a building or structure within the meaning of Labor Law § 240 (1) when his accident occurred. The Third Department affirmed Judge King's decision and order, holding that the inspection and testing duties undertaken by claimant did not fall within Labor Law § 240 (1)'s definition of "repairing" or "cleaning" (
Russ v State of New York, 267 AD2d 833).
Defendant did not cross-move for summary judgment on claimant's Labor Law § 240 (1) cause of action, and neither Judge King nor the Appellate Division granted summary judgment to the State to dismiss it, although either might have and dismissal would logically seem to follow from their respective decisions (CPLR 3212 [b];
see also, Siegel, NY Prac § 282, at 444 [3d ed]; Czaska v Lenn Lease Ltd., 251 AD2d 965 [when plaintiffs appealed from order that had denied their motion for partial summary judgment on liability under Labor Law § 240 (1) because of a factual issue, appellate division held that the activity in question was routine maintenance and granted defendant summary judgment dismissing the Labor Law § 240 (1) cause of action despite absence of a cross-motion]). At the trial on liability and in their post-trial briefs both parties ignored this cause of action, presumably considering it dead. The Court agrees that claimant's Labor Law § 240 (1) cause of action is dead--although technically not officially interred--and will not discuss it further except to observe that no relevant facts in addition to or different from those considered by Judge King and the Third Department came to light at trial.
B. Labor Law § 241 (6)
Labor Law § 241 (6) mandates contractors and owners and their agents "when constructing or demolishing buildings or doing any excavation in connection therewith" to provide "reasonable and adequate protection and safety" to those employed in or lawfully frequenting "[a]ll areas in which construction, excavation or demolition work is being performed" by complying with specific rules and regulations promulgated by the Board of Standards and Appeals (later renamed the Industrial Board of Appeals), or, after 1984, the Commissioner of Labor of the State of New York (L. 1989, c. 520, § 13). This duty is nondelegable, and thus the injured party need not show that the owner or contractor exercised supervision and control over the work performed (
Long v Forest-Fehlhaber, 55 NY2d 154).
Under Labor Law § 241 (6), the injured party must at the outset establish that the owner or contractor violated a rule or regulation that sets forth a specific or concrete standard of conduct, as opposed to a general reiteration of common-law principles (
Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494); however, the violation of such a safety regulation, once proven, does not establish negligence as a matter of law, but rather is merely some evidence of negligence for the fact-finder to consider along with any other relevant evidence (Allen v Cloutier Const. Corp., 44 NY2d 290; Long v Forest-Fehlhaber, 55 NY2d 154, supra; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, supra; Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343; Daniels v Potsdam Cent. School Dist., 256 AD2d 897 [Third Department affirms trial court's denial of plaintiff's motion for summary judgment pursuant to Labor Law § 241 (6) because violation of Industrial Code No. 23 ("Rule 23") regulation pleaded, even if proven, was only some evidence of negligence and record evidence disclosed genuine factual issues as to whether negligence of some party to or participant in construction project caused plaintiff's injury and as to his comparative negligence as well]). In addition, the injured party must show that violation of the particular regulation alleged was a proximate cause of the accident (Ares v State of New York, 80 NY2d 959). In this case, claimant sought at trial to prove that his injuries were proximately caused by the State's violation of 12 NYCRR 23-1.30 ("Illumination") and 12 NYCRR 23-1.22 (b) (2) ("Structural runways, ramps and platforms").[4]
1. Defendant's preliminary arguments
Defendant has raised two threshold issues with respect to claimant's Labor Law § 241 (6) cause of action: (1) that this statutory provision is on its face inapplicable to the facts because it applies only to "construction, excavation and demolition work" whereas claimant was engaged in something quite different; namely, maintenance in a non-construction context; and (2) that the State may not be held liable under Labor Law § 241 (6) for any purported violation of 12 NYCRR 23-1.22 (b) (2) because claimant failed to allege this provision in his claim or in either his bill of particulars or his supplemental bill of particulars, although he did cite it in his expert disclosure (T 168-169).[5]
a. Was claimant engaged in "construction work" within the scope of Labor Law § 241 (6) when he was injured?

(1) Joblon v Solow (91 NY2d 457)
The Court takes as its starting point the Court of Appeals decision in Joblon v Solow (91
NY2d 457). Joblon, who worked for a company hired by a tenant of defendant Solow's commercial office building, was injured when he fell from a ladder while chopping a hole through the concrete block wall of a utility room in order to make an opening for a conduit pipe and wire so as to extend electrical service to the adjacent mailroom. The case came to the Court of Appeals from the Second Circuit, which certified two questions: the first, whether Labor Law § 240 (1), the Scaffold Law, applied because the electrician's work was "alteration" or "repair" of a "building" or "structure" within the meaning of the statute; the second, whether Labor Law § 241 (6) applied because the electrician's work was "alteration," "repair" or "maintenance" within the meaning of the Rule 23 definition of "construction work."
In answering the first certified question in the affirmative, the Court of Appeals construed the word "altering" for purposes of Labor Law § 240 (1) to require "making a
significant physical change to the configuration or composition of the building [or structure]" (Joblon, 91 NY2d at 465 [emphasis in original]); and, while acknowledging that the question was a close one, held that Joblon was altering a building for purposes of Labor Law § 240 (1) at the time of his injury. The Court then went on to state that "[h]aving concluded that Joblon was engaged in ‘altering' under Labor Law § 240 (1) at the time of his injury, we likewise determine that the facts presented could support a claim under Labor Law § 241 (6)" (id., at 466).
The Court noted that "Labor Law § 241 (6) is not limited to accidents on a
building construction site," (id. [emphasis added]), citing Mosher v State of New York (80 NY2d 286 [claimant injured while working on a State highway repaving project]).[6] The Court next cited Jock v Fien (80 NY2d 965 [plaintiff injured during the normal manufacturing process while preparing a mold for fabricating a concrete septic tank]) and DaBolt v Bethelehem Steel Corp. (92 AD2d 70, lv dismissed 60 NY2d 554 [plaintiff injured while repairing a conveyor belt on a machine used to separate out pieces of slag containing reusable iron and steel])[7] as authority for looking to the Code to determine the scope of "construction work" covered under Labor Law § 241 (6); observed that because the Rule 23 definition of "construction work" (12 NYCRR 23-1.4 [b] [13]) includes "‘work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures'" (Joblon, supra, at 466 [emphasis in original]), Joblon could state a claim under Labor Law § 241 (6); and therefore answered the second certified question in the affirmative, too.
In other words, since the Rule 23 definition of "construction work" at 12 NYCRR 23-1.4 (b) (13) includes "alteration," the Court concluded that Joblon was engaged in work within the scope of Labor Law § 241 (6) even though he was not performing this alteration as part of any conventional construction project. By parity of reasoning, because the Rule 23 definition of "construction work" at 12 NYCRR 23-1.4 (b) (13) includes "maintenance," claimant, even though he was performing maintenance at a non-construction site when he was injured, was arguably likewise engaged in work within the scope of Labor Law § 241 (6).

Of course, the analysis and interpretation of
Joblon underlying the foregoing application of it to the present facts may be criticized as excessively reductive. After all, the Court of Appeals specifically observed that its "conclusion that [Joblon] was engaged in an alteration makes it unnecessary for us to reach the alternative terms [i.e., "repair" and "maintenance"] included in the certified questions" (Joblon, 91 NY2d at 461, n 1), which may be read as an admonition not to apply Joblon too broadly; and interpreted the word "alteration" for purposes of Labor Law § 240 (1) to exclude "routine maintenance and decorative modifications" (id., at 465). Since Joblon, the appellate courts have often grappled, either directly or indirectly, with the question of whether or what maintenance work falls within the scope of Labor Law § 241 (6). The results are particularly fact-specific and not entirely consistent--as seems ever the case in this area of law--but nonetheless instructive.
(2) The First Department's post-Joblon decisions
In
Molloy v 750 7th Ave. Assocs. (256 AD2d 61), plaintiff fell while working at a job that entailed changing elevator contacts and cables, putting new chips in computer boards and painting and cleaning an elevator motor room. The First Department held that this particular work "was mere routine maintenance activity and, as such, not akin to the significant structural work involved in [Joblon], and, accordingly, did not function to bring plaintiff within the protective ambit of Labor Law § 241 (6)" (id., at 62).
This decision suggests that maintenance work is not covered by Labor Law § 241 (6) if so routine that it fails to qualify as an "alteration" within the meaning ascribed to that term by the Court of Appeals in
Joblon (see also, Yong Ju Kim v Herbert Const. Co., Inc., 275 AD2d 709, infra), a point subsequently made explicit in Nagel v D & R Realty Corp. (733 NYS2d 389): "Although the [Rule 23] definition of what constitutes ‘construction work' under section 241 (6) includes ‘maintenance' we have held that it is only such maintenance as involves ‘significant structural work'" (citations omitted) (id., 389-390, quoting Molloy v 750 7th Ave. Assocs., 256 AD2d at 62; cf., Wray v 654 Madison Ave. Assocs., L.P., 253 AD2d 394 [elevator maintenance worker injured while repairing elevator was not engaged in construction, demolition or excavation within scope of Labor Law § 241 (6)]; Scaglione v Riverbay Corp., 279 AD2d 254 [changing of elevator cable in absence of any proof that elevator was inoperable does not constitute repair within contemplation of Labor Law § 241 (6)]).
In another relevant First Department case,
Agli v Turner Const. Co., Inc. (246 AD2d 16), plaintiff was employed by the real estate managing agent for a 40-story office building, which was under construction and had yet to be turned over to the owner. Plaintiff, who was assigned various maintenance tasks by his employer, was at the jobsite to read water meters when he was struck by a falling overhead safety net installed to protect construction workers onsite from falling debris.
The Court observed that plaintiff was not engaged in "construction work" "since [he] was not employed or engaged in construction at the time of the accident and, instead, was injured in the performance of routine maintenance" (
id., at 24), as opposed to the kind of alteration contemplated in Joblon. As a result, the Court found that the trial court had properly dismissed plaintiff's Labor Law § 240 (1) claim, and should have dismissed his Labor Law § 241 (6) claim "for the same reason" (id., at 24).
The result in
Agli also fundamentally turned on the Court's determination that plaintiff was "not a member of the special class for whose protection the Labor Law was intended" (id., at 21)[8] because "[t]he statutory protection [of Labor Law § 241 (6)] does not extend . . . to employees performing routine maintenance tasks at a building that happens to be undergoing construction" (Blandon v Advance Contracting Co., Inc., 264 AD2d 550, 552 [maintenance foreman and security guard who fell through opening where spiral staircase had been removed as part of building renovation was not covered by Labor Law § 241 (6), which is limited to those employed on actual construction project taking place at construction site]). In other words, an employee hired by a contractor, owner or agent to work at a jobsite where construction is coincidentally in progress but not hired to work on the construction project itself falls outside the ambit of Labor Law § 241 (6) (see also, Lynch v Abax, Inc., 268 AD2d 366 [building employee who was injured when he dropped heated aerosol can left by someone on steam pipes in building's mechanical room was not protected by Labor Law § 241 (6) because he was not engaged in construction work underway at his building, but rather was performing routine maintenance check of building's steam equipment]; Valinoti v Sandvik Seamco, Inc., 246 AD2d 344 [plaintiff hired not to work "on" the building construction or renovation but "at" the building site where renovation was in progress was not within class of persons protected by Labor Law]; cf., Longo v Metro-North Commuter R.R., 275 AD2d 238 [railroad employee who acted as conductor with flagging duties to protect workers rebuilding station platform from any dangers arising from moving trains or contact with the third rail and to prevent debris, tools or other objects from fouling the tracks was covered by Labor Law § 241 (6) when injured because he was an integral part of work crew and actual construction team could not discharge its duties without his continuous presence]).
Agli's express rationale in the latter regard does not readily jibe with Joblon's apparent instruction that a worker who is carrying out an activity enumerated in Rule 23's definition of "construction work" is covered by Labor Law § 241 (6) regardless of whether this activity is taking place at an actual construction site (cf., Martinez v City of New York, 93 NY2d 322, supra [Labor Law § 240 (1) not limited to work performed on actual construction site, but task in which injured employee was engaged must have been performed while carrying out an activity enumerated in statute]). The explanation for any discrepancy may lie in the fact that the plaintiff maintenance workers in Agli and Blandon (and perhaps the plaintiff maintenance worker in Lynch) fell prey to hazards deriving from a construction project underway at their workplaces, not to hazards inherent in the particular tasks (whether enumerated or not) that they were carrying out. In this sense, they were similar to a visitor to a construction site, such as the plaintiff in Mordkofsky v V.C.V. Dev. Corp. (76 NY2d 573, supra), the contract-vendee of a house being custom built who was injured while he was inspecting the progress of the work. Nonetheless, these cases portray a reluctance to extend the protection of Labor Law § 241 (6) to those workers not engaged in an actual construction, demolition or excavation project.
(3) The Second Department's post-Joblon decisions
In
Yong Ju Kim v Herbert Const. Co., Inc. (275 AD2d 709, supra), a staff electrician at a hotel was injured while trying to determine the cause of a malfunctioning outlet, and he attributed his injury to the condition in which a contractor performing renovation work at the hotel had left the panel in an electrical closet. The Second Department determined that Supreme Court had erred by failing to recognize that plaintiff did not fall within the class of persons protected by Labor Law § 241 (6) (accord, Somerville v Usdan, 255 AD2d 500 [garage worker who was assigned to maintain and repair vehicles and who was injured when he tripped over some iron reinforcing rods and fell into a shallow trench that had been excavated as part of construction job at his work site is not within class of persons protected by Labor Law; cf., Paciente v MBG Dev., Inc., 276 AD2d 761, infra]).
The Court distinguished
Joblon because there "the Court of Appeals held that Labor Law § 241 (6) applied because the type of work being performed by the ‘house electrician' at the time of his injury constituted alteration work which was encompassed by the Labor Law," whereas in this case "the work performed at the time of the plaintiff's injury constituted routine maintenance activity. Accepting the plaintiff's version of the facts as true for the purposes of the motion [for summary judgment], he was merely attempting to locate the cause of a malfunctioning outlet in one of the rooms" (Yong Ju Kim v Herbert Const. Co., Inc., 275 AD2d 709, 712, supra).
In
Luthi v Long Island Resource Corp. (251 AD2d 554), plaintiff fell from a ladder while running a borrowed microphone cable through a drop ceiling to accommodate a special event at the nightclub where he was employed as a manager and maintenance worker. Citing Joblon, the Second Department held that "plaintiff's claim pursuant to Labor Law § 241 (6) must be dismissed because the accident did not arise in a ‘construction' context" (id., at 556). The Second Department has decided several other cases on the same or very similar grounds (see, e.g., Urbano v Plaza Materials Corp., 262 AD2d 307 [decedent arguably repairing a latch at time of his apparently unwitnessed fatal accident was therefore performing no more than routine maintenance and so was not engaged in construction work for purposes of Labor Law § 241 (6)]; Rogala v Van Bourgondien, 263 AD2d 535 [plaintiff handyman who fell from ladder while installing and/or replacing window screens at motel was performing routine maintenance and was not injured in a construction context for purposes of Labor Law § 241 (6)]; Breeden v Sunset Indus. Park Assocs., 275 AD2d 726 [plaintiff telephone repairman injured when he fell from a ladder while performing routine maintenance of a non-working telephone line was not covered by Labor Law § 241 (6) because no construction, demolition or excavation work was being performed]; Paciente v MBG Dev., Inc., 276 AD2d 761 [plaintiff allegedly injured when he slipped and fell down snowy and icy stairs that he was shoveling for his employer at construction site owned by defendant was performing routine maintenance and not construction work within the meaning of Labor Law § 241 (6)]; Burr v Short, 285 AD2d 576 [plaintiff who was trimming tree limbs on defendant's property when tree limb struck him and his ladder causing him to fall to the ground was not covered by Labor Law § 241 (6) because "the activity which the plaintiff was performing at the time of the accident constituted ‘routine maintenance in a non-construction, non-renovation context'" (id., quoting Gavin v Long Is. Light. Co., 255 AD2d 551, 552)]).
By way of comparison, in O'Hare v City of New York (280 AD2d 458) a maintenance engineer who worked for a construction company was injured when using planking to exit a concrete pit after servicing a pedestal crane at a construction site. Citing Covey v Iroquois Gas Transmission Sys., L.P. (89 NY2d 952, supra), the Court held that plaintiff was engaged in activity covered by Labor Law § 241 (6) because "the work he performed was part of the ongoing construction at the worksite" (O'Hare, 280 AD2d at 458).
(4) The Fourth Department's post-Joblon decisions
In
Pasquale v City of Buffalo (255 AD2d 874), plaintiff's employer had a contract with the city school board to maintain the boilers at an elementary school, and Pasquale was performing routine maintenance on a boiler when he slipped and fell. The Fourth Department first held that the trial court had erred in granting plaintiff partial summary judgment on liability on his Labor Law § 240 (1) cause of action and in denying so much of defendants' cross motions as sought partial summary judgment dismissing this cause of action because "[a]t the time of [plaintiff's] accident, [he] was engaged in routine maintenance, which is not a protected activity under Labor Law § 240 (1)" (id.), a proposition for which the Court cited Joblon. The Fourth Department then went on, however, to hold that plaintiff was engaged in a protected activity under Labor Law § 241 (6) because Rule 23's definition of "construction work" includes both repair and maintenance, and again cited Joblon. There was no construction underway at the school when Pasquale was injured; he was therefore obviously not maintaining or repairing the boiler as part of any construction project at the worksite (cf., DaBolt v Bethlehem Steel Corp., 92 AD2d 70, supra).
The Fourth Department, however, stepped back from the broadest implications of its holding in
Pasquale in Noah v IBC Acquisition Corp. (262 AD2d 1037, lv dismissed 93 NY2d 1042). In this case, the Court held that a plaintiff who slipped and injured herself while cleaning rainwater from a slide at an amusement park was not covered by Labor Law § 241 (6):
Plaintiff was not "engaged in [work that] affected the structural integrity of the building or structure or was an integral part of the construction of a building or structure" (citations omitted). The statute and its implementing regulations apply to workers who are "constructing or demolishing buildings or doing any excavating in connection therewith" (Labor Law § 241; see, 12 NYCRR 23-1.3, 23-1.4 [a]). Plaintiff was cleaning the slide as part of her routine duties and not in connection with the construction of any building or structure
(id.).
The Fourth Department has consistently reiterated this narrower view of the maintenance work covered by Labor Law § 241 (6) (see,
e.g., Casey v Niagara Mohawk Power Corp., 269 AD2d 775 [plaintiff injured when his aluminum ladder came into contact with an electrical line while he was touching up paint on a billboard; and Court held that this touch-up painting did not constitute construction, excavation or demolition work covered by Labor Law § 241 (6), citing both its earlier decision in Noah and the First Department's decision in Molloy]; Scott v Scott's Landing, Inc., 277 AD2d 918 [assuming that plaintiff who fell off roof of defendant's place of business while securing a metal sheet over an air conditioning unit was "working for another for hire" (Labor Law § 2 [5]) and so was within class of persons protected by Labor Law, he was covered by neither Labor Law § 240 (1) nor Labor Law § 241 (6) because he was "performing routine maintenance unconnected to any construction work at the time of the accident," id., at 919]; Bieber v A & B Wholesale, 2002 NY App Div LEXIS 1155 [plaintiff struck by vehicle while removing trees and brush for his employer at the request of National Fuel Gas Corporation, which needed the land cleared in order for its employees to have access to right-of-way for its natural gas pipeline, was not protected by Labor Law § 241 (6) because he was injured while performing routine maintenance in a non-construction, non-renovation context]).
(5) The Third Department's post-Joblon decisions
The plaintiff in
Coates v Kraft Foods, Inc. (263 AD2d 734) was a contract employee hired to shuttle trailers, some of which were equipped with refrigeration units called "reefers," in the yard of defendants' facility. When a reefer did not work because of low fuel or a dead battery, plaintiff would check fuel and water levels or jump start it with cables, a routine practice in the cold weather months. He was injured when, intending to jump start a reefer, he climbed onto the "fifth wheel" of the tractor to which it was connected and slipped and fell.
The trial court granted summary judgment to defendant to dismiss plaintiff's causes of action under Labor Law §§240 (1) and 241 (6), and the Third Department affirmed. The Court characterized plaintiff's work as routine maintenance, not repair, and therefore outside the scope of Labor Law § 240 (1); and continued that "Supreme Court's dismissal of plaintiff's Labor Law § 241 (6) claim was similarly appropriate in that plaintiff's injuries did not result from an accident in which construction, demolition or excavation was being performed," citing a pre-
Joblon Third Department case, Houde v Barton (202 AD2d 890, lv dismissed 84 NY2d 977 [decedent employee of defendant mines, who was killed when he either fell or climbed through an opening between the steel framework of an elevated overland conveyor system for crushed ore and an adjoining walkway and was crushed by the take-up pulley, was not covered by Labor Law § 241 (6) because his injuries did not "result[] from an accident in which construction, demolition or excavation was being performed," id., at 895]; see also, LaClair v Shelly Elec., Inc., 264 AD2d 55 [plaintiff truck worker, who was injured while walking on his employer's property when he fell through a sheet of insulation covering an open pit where construction work was underway, was not engaged in any construction, excavation or demolition work protected by Labor Law § 241 (6)]).
The Third Department was next faced with these same issues in
Robertson v Little Rapids Corp. (277 AD2d 560), a case in which the plaintiff, an employee of a subcontractor, was injured while replacing an 8,500-pound top press roll on a paper press located in a paper factory. The Court characterized this work as routine maintenance, not repair, and therefore outside the scope of Labor Law § 240 (1). The Court then went on to hold that the trial court had properly declined to dismiss plaintiff's Labor Law § 241 (6) cause of action in light of a question of fact as the applicability of the specific Rule 23 safety regulation pleaded. Of course, this latter holding assumes that the plaintiff, who was injured while engaged in routine maintenance unconnected with any construction project at the worksite, was nevertheless covered by Labor Law § 241 (6) and to that extent this decision is difficult to square with Coates v Kraft Foods, Inc. (263 AD2d 734, supra).
The Third Department subsequently decided
Sajta v Latham Four Partnership (282 AD2d 969), a case in which plaintiff, a maintenance worker employed by a management corporation, was injured by a block of ice that fell from an awning and hit him while he was spreading calcium chloride on a mound of ice in the parking lot of defendant's building. The Court concluded that plaintiff's Labor Law § 241 (6) cause of action should have been dismissed because, among other things, "[t]o be afforded the protection of this statute, the worker must be engaged in construction, excavation or demolition which has an impact on the ‘structural integrity of the building or structure or was an integral part of the construction of a building or structure'" (id., quoting Walton v Devi Corp., 215 AD2d 60, 63, lv denied 87 NY2d 809) whereas in this case "the activities of plaintiff in the performance of his work had no impact on the structural integrity of the building" (Sajta, 282 AD2d at 971).
The Court in
Sajta principally relied on its pre-Joblon decision in Walton v Devi Corp. (215 AD2d 60, lv denied 87 NY2d 809, supra), which was also cited by the Fourth Department in Noah v IBC Acquisition Corp. (262 AD2d 1037, supra) and Bieber v A & B Wholesale (2002 NY App Div LEXIS 1155, supra); by the First Department in Agli v Turner Constr. Co. (246 AD2d 16, supra); and by the Third Department in Williams v G.H. Dev. and Const. Co. Inc. (250 AD2d 959, infra). In Walton, the plaintiff lost his sight in one eye when he was struck by a wood chip likely thrown by a wood-chipping machine. He was at the time working for a contractor engaged to remove trees that were obscuring a motel's sign.
The Third Department first stated that although Labor Law § 241 (6) was not limited to building construction sites, citing
Mosher v State of New York (80 NY2d 286, supra), "liability will not be imposed unless the plaintiff's injury results from an accident in which construction, demolition or excavation work was being performed" (Walton, 215 AD2d at 62). The Court then summarized the facts of a number of cases in which courts had found that the injury-causing activities did not satisfy Rule 23's broad definition of "construction work" and those in which the courts had found otherwise, concluding that "[t]hese latter cases are distinguishable from the former in that the work the plaintiffs were engaged in affected the structural integrity of the building or structure or was an integral part of the construction of a building or structure, whereas in the former cases the plaintiffs were engaged in work that neither affected the structural integrity of a building or structure nor involved their construction" (id., at 63). This formulation arguably establishes a standard for "construction work" encompassed by Labor Law § 241 (6) that is higher than Joblon's definition for a covered alteration since that which "mak[es] a significant physical change to the configuration or composition of the building or structure" (Joblon, 91 NY2d at 465) does not necessarily affect structural integrity or take place as an integral part of construction.[9]
(6) Conclusion
Whether claimant was engaged in "construction work" within the scope of Labor Law § 241 (6) when he was injured turns out to be somewhat problematic. In determining the scope of Labor Law article 10, generally, the Court of Appeals has in recent years focused not on whether a worker was injured at or away from a construction site, but on whether the worker was performing an explicitly enumerated task when injured (i.e., a task listed in Labor Law § 240 [1], or, for purposes of Labor Law § 241 [6], listed in the Rule 23 definition of "construction work") (
see, Joblon v Solow, 91 NY2d 457, supra, and Martinez v City of New York, 93 NY2d 322, supra), or at least so it seems to this Court. At the same time, the appellate divisions have not applied Joblon or Rule 23's expansive definition of "construction work" at all freely when considering workers injured while performing maintenance tasks. With the exception of two outliers--Pasquale v City of Buffalo (255 AD2d 874, supra) and Robertson v Little Rapids Corp. (277 AD2d 560, supra)--the appellate courts have consistently held that "construction work" within the ambit of Labor Law § 241 (6) encompasses only such maintenance as is significant in some sense, akin to an "alteration" as defined by the Court of Appeals in Joblon, or even structurally significant or an integral part of construction; or perhaps qualifies as a repair; or is performed as part of an ongoing construction, demolition or excavation project.
Here, claimant was not performing an "alteration" or "repair," as already decided by Judge King; he was not carrying out maintenance tasks as part of some ongoing construction, demolition or excavation project. His maintenance work certainly did not affect the Armory's structural integrity. The Court therefore concludes that claimant was not engaged in "construction work" within the scope of Labor Law § 241 (6) when he was injured; however, because this area of law is chronically vexed and unsettled, the Court will nonetheless go on to consider whether, assuming that claimant was, in fact, performing "construction work" covered by Labor Law § 241 (6), he has otherwise established defendant's liability for violation of the statute.
b. abWhat are the consequences, if any, of claimant's failure to allege a violation of 12 NYCRR 23-1.22 (b) (2) in either his claim or bill of particulars?

As noted previously, claimant did not mention 12 NYCRR 23-1.22 (b) (2) in either his claim or his bill or supplemental bill of particulars (T 168-169). Defendant argues that claimant therefore may not predicate liability under Labor Law § 241 (6) upon a purported violation of this provision; or, more specifically, that the Court should have precluded and therefore should disregard the testimony of claimant's expert, Ernest J. Gailor ("Gailor"), with respect to 12 NYCRR 23-1.22 (b) (2) (T 262-263)
.
Claimant contends that defendant was not surprised and suffered no prejudice because violation of this provision was alleged in the CPLR 3101 (d) disclosure for Gailor (T 169). Claimant never explicitly moved either to amend the claim or the bill of particulars or to conform them to the proof.

As this Court understands Labor Law § 241 (6), claimant was required to allege in either the claim or the bill of particulars those specific safety regulations the breach of which he blames for his injuries (
see, e.g., Raposo v WAM Great Neck Ass'n II, L.P., 251 AD2d 392). The question for decision therefore becomes whether the Court should deem the claim or the bill amended accordingly.
Belatedly sought emendations are chancy where Labor Law § 241 (6) is concerned. For example, in
Lewis v U.A. Columbia Cablevision of Westchester, Inc. (277 AD2d 357), the trial court granted so much of plaintiff's cross-motion as was for leave to file a supplemental bill of particulars, and the Second Department reversed, stating that because "plaintiffs failed to properly plead a violation of a section of the Industrial Code that would permit recovery under the facts of this case. . . . Supreme Court should have granted summary judgment to the appellant dismissing the cause of action under Labor Law § 241 (6)" (id., at 358; see also, Way v State of New York, Lebous, J., UID # 2001-019-514 [Court denied claimant's cross-motion for permission to amend his bill of particulars to cite two additional Rule 23 provisions that were allegedly violated, which was made in opposition to defendant's motion for summary judgment on Labor Law § 241 (6) cause of action]).
On other occasions, courts have proven more receptive to the proffer of a safety rule in the nick of time. For example, the First Department in
O'Connor v Lincoln Metrocenter Partners, L.P. (266 AD2d 60) affirmed what it characterized as "in effect the [trial court's] grant of a motion to amend the pleadings" to allow plaintiff to allege violations of specific Rule 23 regulations in response to defendant's motion for summary judgment, reasoning that plaintiff's reliance on these newly identified safety rules did not "entail the allegation of new facts and . . . caused no prejudice to [defendant]" (id., at 62; see also, McQuaig v Olympia & York 125 Broad St. Co., 247 AD2d 273 [appellate court affirmed trial court's denial of defendants' motion to preclude plaintiff's claim of a violation of a specific Rule 23 regulation and to dismiss complaint where discovery was still in progress and significant prejudice was not demonstrated, characterizing trial court's action as de facto granting of leave to amend]).
The Court may grant leave to amend pleadings at any time, and such leave should be "freely given upon such terms as may be just" (CPLR 3025 [b]); and motions to amend a bill of particulars are "governed by the same standards as those applying to motions to amend pleadings" (
Scarangello v State of New York, 111 AD2d 798). Moreover, the Court "may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just" (CPLR 3025 [c]); and may do so sua sponte (Diemer v Diemer, 8 NY2d 206).
As Professor Siegel has pointed out, prejudice is always the paramount consideration in these situations (Siegel, NY Prac § 237, at 378-379, § 404, at 652 [3d ed];
cf., Sharkey v Locust Valley Marine, Inc., 96 AD2d 1093), and the State has not protested much less established prejudice. Defendant, after having received claimant's CPLR 3101 (d) expert disclosure for Gailor, could have requested more time to meet this new matter if, in fact, more time was required, rather than wait until trial and then ask the Court to preclude or disregard claimant's proof. Accordingly, the Court concludes that claimant's failure to allege a violation of 12 NYCRR 23-1.22 (b) (2) in his claim or bill of particulars is not fatal.
2. 12 NYCRR 23-1.30 (Illumination)
Section 23-1.30 of Title 12 provides that "[i]llumination sufficient for safe working conditions shall be provided wherever persons are required to work or pass in construction, demolition and excavation operations, but in no case shall such illumination be less than 10 foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass." This provision is sufficiently specific to support a Labor Law § 241 (6) cause of action (
Dickson v Fantis Foods, Inc., 235 AD2d 452; Gawel v Consolidated Edison Co. of New York, Inc., 237 AD2d 138).
Gailor, a licensed professional engineer with specialized training related to jobsite safety, visited the Armory on the morning of December 15, 2000 (T 259, 265-266) and took "a light level reading of [the raised area] and found that the light level in that area was less than one foot candle" (T 264). He viewed the raised area from a ladder (T 260), and did not elaborate on how he took the reading or where his light measurements were made in relation to the location where claimant fell. Moreover, there is both natural and artificial lighting in the Armory's attic (claimant's exhs. 1 and 12; defendant's exh. D;
see also, T 209, 216, 210), and Gailor did not indicate whether the attic was illuminated by any artificial lighting when he took his measurements or whether the day was sunny or otherwise. He testified that "[f]rom [his] experience of measuring illumination and from being in the space and realizing how much, even on a bright day, how much light would be available to flood through that turret and it go into that elevated space," he "[did] not believe it would have reached the ten-foot candle mark" (T 268), which implies that he relied on whatever natural lighting was available on that particular mid-December morning to support his "belief." This testimony is simply too vague to establish a violation of 12 NYCRR 23-1.30.
In any event, claimant testified that August 20, 1997 was a sunny day (T 38) and that the lighting in the raised area at the time of his accident was "good" and "okay" and that he "was able to see the joists and it looked safe. . . . " (T 73). He carried no flashlight (except perhaps for his mini-mag light) (T 29-30;
but see, T 96-97), and it apparently never occurred to him to use a flashlight. According to claimant, he lost his balance and fell because his foot slipped or something moved (T 77), not because he was unable to see where he was going. In short, there is no evidence that inadequate lighting was a proximate cause of claimant's accident.
3. 12 NYCRR 23-1.22 (b) (2) (Structural runways, ramps and platforms)
Section 23-1.22 (b) (2) of Title 12 provides that "[r]unways and ramps constructed for the use of persons only shall be at least 18 inches in width and shall be constructed of planking at least two inches thick full size or metal of equivalent strength. Such surface shall be substantially supported and braced to prevent excessive spring or deflection. Where planking is used it shall be laid close, butt jointed and securely nailed." This provision also sets forth a standard of conduct sufficiently specific to support a Labor Law § 241 (6) cause of action (
O'Hare v City of New York, 280 AD2d 458, supra; Reisch v Amadori Const. Co., Inc., 273 AD2d 855), but it is inapplicable to these facts: 12 NYCRR 23-1.22 (b) (2) does not require the construction or use of runways or ramps in any particular place or situation, much less in the raised area. Rather this safety rule specifies the width and thickness of planking when used for runways or ramps at a construction, excavation or demolition site (see, e.g., O'Hare v City of New York, 280 AD2d 458, supra [planking plaintiff was using to exit a concrete pit at construction site broke lengthwise]; Reisch v Amadori Const. Co., Inc, 273 AD2d 855, supra [plaintiff fell off a crude plank ramp leading from bridge abutment to ground level over excavation at bridge reconstruction project, an accident potentially implicating ramp's width but not its thickness]).
C. Labor Law § 200 and common-law negligence
This statute codifies the common-law duty of an owner and contractor to maintain a safe place
to work (Allen v Cloutier Const. Corp., 44 NY2d 290, supra). When an injury is caused by some defect or danger in the contractor's manner or method of carrying out the work, the owner is not liable absent supervisory control over the injury-producing activity (Comes v New York State Elec. and Gas Corp., 82 NY2d 876; Lombardi v Stout, 80 NY2d 290), which entails more than general supervisory control, presence at the work site or authority to enforce safety standards (see, e.g., Soshinsky v Cornell University, 268 AD2d 947). An owner's actual or constructive notice of the allegedly unsafe manner in which the work was carried out is insufficient by itself to establish liability under Labor Law § 200 (Comes v New York State Elec. and Gas Corp., 82 NY2d 876, supra; see also, Rapp v Zandri Const. Corp., 165 AD2d 639, 642). When the injury is instead caused by a dangerous or defective condition of the workplace, liability attaches to an owner who exercises supervisory control over the premises and has either created or has actual or constructive notice of the dangerous or defective condition (Bidetto v New York City Housing Authority, 25 NY2d 848; Whitaker v Norman, 75 NY2d 779).
Here, the evidence establishes that claimant's injuries were caused solely by the manner or method by which he carried out preventive maintenance work at the Armory. He arrived at the Armory without extender poles or ladders or any other equipment that would allow him to reach fire detection or alarm appliances installed at a height. He alone elected to go ahead and check the devices in the raised area on August 20
th , although he was not particularly well-equipped to do so and knew or should have known that he would have to make another trip to the Armory to finish the preventive maintenance inspection (T 93-94, 226). He alone elected to hoist himself up into the raised area from a six-foot ladder and then to walk across the joists with his "legs spread apart over the joists" (T 75), grasping a beam overhead with his right hand and carrying a can of air or smoke in his left hand (T 112-113) in order to reach and test the smoke detectors positioned on the conduit attached to the rafter. He alone decided that the lighting in the raised area was sufficient for him to carry out this work safely. He alone decided not to lay down planks to create a wider walking surface in the raised area because "[i]t appeared to be safe" (T 111). He was well aware that he would fall through the ceiling if he stepped off a joist (T 112).
The State exercised no supervisory control over claimant's manner or method of carrying out his work. McMillen basically acted as claimant's helper: he unlocked doors for him; pointed out where various fire detection and alarm devices were installed; provided him with a copy of the checklist from Northern's last preventive maintenance inspection at the Armory; and fetched and safely positioned ladders for his use, since claimant arrived alone and without his own ladders or the extender poles used by Northern's employees during the previous inspection (T 98, 117, 119, 200-203, 225-227). He did not in any way direct or dictate how claimant went about inspecting the Armory's fire detection and alarm system. McMillen "had no idea" beforehand that claimant intended to climb into the raised area (T 214).

Finally, there was no dangerous or defective condition in the raised area. Although claimant testified that he lost his balance and fell when his foot slipped or something moved (T 77), there was no evidence presented of any loose or otherwise defective joist. Moreover, the existence of what was, in effect, a drop ceiling does not constitute a dangerous or defective condition that the State had a duty to "fix" by installing flooring or planking or a platform over the joists to which this ceiling was attached, as claimant suggests. Of course, to the extent that the raised area by its very nature presented a danger, this was readily observable by the reasonable use of the senses and admittedly was readily observed by claimant (
Stephens v Tucker, 184 AD2d 828 [trial court properly dismissed Labor Law § 200 cause of action of plaintiff who was injured when he lost his balance and fell from a roof since the risks and dangers of slipping and falling from a pitched roof were inherent in the circumstances]; see also, Soshinsky v Cornell University, 268 AD2d 947, supra).
III. Conclusion
Based on the foregoing, the Court dismisses the claim; specifically, the Court (1) dismisses the Labor Law § 240 (1) cause of action for the reasons stated by Judge King, as affirmed by the Third Department; (2) dismisses the Labor Law § 241 (6) cause of action because claimant was not engaged in "construction work" within the scope of the statute when he was injured, or, alternatively, because he has not established by a fair preponderance of the credible evidence that the State violated 12 NYCRR 23-1.30 or that any violation of this safety rule was a proximate cause of his accident and because 12 NYCRR 23-1.22 (b) (2) is inapplicable to the facts; and (3) dismisses the Labor Law § 200 and common-law negligence causes of action because the State had no supervisory control over the activity bringing about claimant's injuries, which were proximately caused solely by the manner and method by which he chose to carry out his work and not by any dangerous or defective condition of the premises.

The Court has reviewed claimant's proposed Findings of Fact and Conclusions of Law and has incorporated into this decision those Findings of Fact and Conclusions of Law it deems essential to this decision in compliance with CPLR 4213 (b).

The Court denies any motions on which judgment was reserved or which were not previously decided; and directs the Chief Clerk to enter judgment accordingly.


March 22, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]The claim of claimant Michelle Russ is derivative in nature; therefore, "claimant" refers solely to Timothy Russ as indicated.
[2]"T" followed by a number(s) refers to the corresponding page(s) in the transcript of the trial on liability.
[3]The joists to which the attic enclosure's ceiling is attached and/or the space between these joists and the roof was consistently referred to by the witnesses at trial as "the raised area," a terminology also adopted by the Court in this opinion.

[4]Claimant's expert witness also testified that the raised area does not comply with various provisions of the State Uniform Fire Prevention and Building Code ("the Building Code"); specifically, 9 NYCRR Part 803 ("Design Loads"), 9 NYCRR 1152.1 and 9 NYCRR 1245.1. The Building Code is formulated by the State Fire Prevention and Building Code Council pursuant to Executive Law §§ 375 and 377, not by the Commissioner of Labor pursuant to Labor Law § 241 (6), and therefore the violation of a Building Code rule may never serve as the predicate for a cause of action under the latter provision. While violation of an applicable Building Code provision would provide some evidence of negligence, the cited Title 9 regulations appear distinctly inapplicable to the facts here. Part 803 is found in Subchapter B ("Building Construction") of the Building Code, which applies to new construction of buildings and to conversions, additions and alterations to buildings where set forth in Subchapter E of the Building Code ("Conversions, Alterations, Additions and Repairs to Existing Buildings"). The Armory was built in the late 19th century (T 144); the record does not establish when the attic enclosure was built or (apparently) expanded or modified, although McMillen testified that the raised area has been in existence in its current configuration and condition since at least January 1970 (T 161-162), which is prior to Subchapter E's effective date, even assuming that construction of the enclosure (or of that portion of it with the fiberboard ceiling panels) is an "alteration" or "addition" within the contemplation of Subchapter E. As for 9 NYCRR 1152.1, this provision is found in Subchapter C of the Building Code, the purpose of which is "to establish minimum rules and regulations to safeguard life and property from the hazards of fire, explosion, structural instability, or rele
ase of toxic gases arising from "
the storage, handling or use of hazardous substances, materials or devices
" (emphasis added); and 9 NYCRR 1245.1 is found in Subchapter F ("Housing Maintenance"), which "provides standards governing the facilities and the condition, use, occupancy and maintenance of residential premises, to safeguard the safety, health and welfare of the occupants and users thereof" (emphasis added).
[5]The same state of affairs exists with respect to claimant's Labor Law § 241 (6) cause of action based on purported violations of the Building Code, with regard to which the State accordingly raises the same objection. For the reasons already stated (see, n 4, supra), the Court does not consider the cited Building Code provisions to be relevant.

[6]Both in Mosher and in each of the cases cited with approval in Mosher, the claimant or plaintiff was injured while working on a construction project of some sort, just not a building construction project (see, Tilkins v City of Niagara Falls, 52 AD2d 306 [plaintiff injured while working on project to install water and sewer line on platted but undeveloped city streets]; Page v State of New York, 56 NY2d 604, affg on opns at 73 AD2d 479 [claimant injured while working on project to install sanitary sewer system at State park]; Celestine v City of New York, 59 NY2d 938, affg on opn at 86 AD2d 592 [plaintiff injured while working on subway construction project]). Of course, Joblon himself was not engaged in alteration as part of a conventional construction project (see also, Martinez v City of New York, 93 NY2d 322 ). As the discussion in the text illustrates, however, most post-Joblon appellate decisions nonetheless exclude maintenance work from the purview of Labor Law § 241 (6)--although "maintenance" is an activity enumerated in Rule 23's definition of "construction work"--unless performed as part of a construction project, as has been the rule for purposes of Labor Law § 240 (1)--where neither "maintaining" nor "maintenance" is an activity specified in the statute (see, e.g., Covey v Iroquois Gas Transmission Sys., L.P., 89 NY2d 952 [plaintiff who fell from backhoe while replacing its hydraulic fluid is covered by Labor Law § 240 (1) because this maintenance work was performed as part of ongoing construction of pipeline]; but cf., Martinez v City of New York,
93 NY2d 322,
supra
; Wilson v City of New York, 89 F3d 32, 36-37).

[7]In Jock, the plaintiff was "not engaged in any construction or sewer project and was not involved in renovation or alteration work on the factory" (Jock v Fien, 80 NY2d at 968). By contrast, the employee in DaBolt was performing an activity enumerated in Rule 23, although not as part of a construction project at a construction site. The Fourth Department held in DaBolt that the worker was covered by Labor Law § 241 (6) because Rule 23 defines "‘construction' to encompass both maintenance and repair work" (DaBolt v Bethelem Steel Corp., 92 AD2d at 74, supra; see also, Wilson v City of New York, 89 F3d at 38, supra).

[8]In Mordkofsky v V.C.V. Dev. Corp. (76 NY2d 573), the Court of Appeals advised that "in order to invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents, a ‘plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent'" (citations omitted) (id., at 576-577, quoting Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971). The First Department also relied on its decision in Brown v Christopher St. Owners Corp. (211 AD2d 441, affd 87 NY2d 938) to support the proposition that Agli was not a member of the special class for whose protection the Labor Law was intended. In Brown, the injured plaintiff "was hired solely by the tenant [a proprietary tenant and shareholder of a cooperative apartment unit], without the consent or the knowledge of either the owner [the cooperative corporation] or [its] managing agent" to wash the windows of a single cooperative apartment (id., at 442 [emphasis added]). This basis for decision, which was not discussed by the Court of Appeals, is interesting because Joblon was an employee of Geller Electric Construction and Maintenance, Inc., which was apparently hired by Avon Products, Inc., a tenant of the building owned by Sheldon H. Solow, to work on the property that it leased from Solow. The question of whether Joblon was a member of the special class for whose protection the Labor Law was intended seems not to have been raised in the diversity action and was, of course, not a certified question.

[9]But perhaps in the application this standard is not much different, or at least not more stringent. For example, in Williams v G.H. Dev. and Const. Co. Inc. (250 AD2d 959, supra), a case decided shortly after and undoubtedly submitted before Joblon, the Third Department considered whether Labor Law § 241 (6) protected a deliveryman for a plumbing and heating supply company who was injured when he delivered a tub and shower unit to another plumbing company at a jobsite for installation in a one-family living unit under construction. The deliveryman fell down a basement stairwell of the unit, which was unprotected by railings.

The Court held that the defendant-landowner had violated a specific Rule 23 safety requirement and was liable to plaintiff under Labor Law § 241 (6); and found "no merit in defendant's contention that plaintiff was not afforded the statute's protection because he was not employed in construction on the premises" (id., at 961): "Plaintiff was involved in an activity integral to the construction of the building. The bath unit had to be delivered to the site preliminary to its affixation to the building. Under these circumstances, plaintiff was protected by the statute" (Williams, 250 AD2d at 961 (emphasis added); see also, Akins v Baker, 247 AD2d 562 [plaintiff who was delivering sheetrock to a construction site and who was injured while maneuvering a piece of sheetrock through a doorway covered by Labor Law § 241 [6]; but see, Martinez v City of New York, 93 NY2d 322, supra [rejecting analysis focusing on whether plaintiff's work was an "integral and necessary part" of a larger project for purposes of determining whether he was entitled to protection of Labor Law § 240 (1)]).