Though provisions of Workers' Compensation Law bar action by Canal Corporation employee against the Thruway Authority, no such bar exists preventing action against State. Questions of fact exist concerning what materials and equipment were "readily available" to Claimant, as well as any guidelines or instructions given to her concerning obtaining necessary equipment. However, as the activity Claimant was involved in at the time of the accident was routine maintenance as opposed to repair work, it does not fall within the protection of § 240(1) of the Labor Law. Accordingly the claim is dismissed.
|Claimant(s):||BARBARA J. BUCKMANN|
|Claimant short name:||BUCKMANN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and the NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||DOMINIC PELLEGRINO, ESQ.|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 10, 2008|
|Appellate results:||64 AD3d 1137|
|See also (multicaptioned case)|
In addition to hearing oral argument from counsel on November 19, 2007, the following papers, numbered 1 to 9, were read on motion by Claimant for partial summary judgment and on cross-motion by Defendants for summary judgment and/or dismissal of the claim:
1) Claimant's Notice of Motion (M-73410), filed May 18, 2007;
2) Affidavit of Dominic Pellegrino, Esq., sworn to May 16, 2007, with attached exhibits;
3) Claimant's Affidavit, sworn to May 14, 2007;
4) Claimant's Memorandum of Law, dated May 16, 2007;
5) Defendants' Notice of Cross-Motion (CM-73906), filed August 29, 2007;
6) Affirmation of Thomas G. Ramsay, Esq., dated August 28, 2007, with attached exhibits;
7) Claimant's Reply Memorandum of Law, dated September 25, 2007;
8) Correspondence from Thomas G. Ramsay, Esq., dated November 23, 2007;
9) Correspondence from Dominic Pellegrino, Esq., dated November 30, 2007.
On June 9, 2003, Claimant Barbara J. Buckmann, an employee of the New York State Canal Corporation ("Corporation"), was injured when she fell 13 feet from a stairway landing over Lock 33 in the town of Brighton, New York. At the time of the accident, Claimant was attempting to repair a canal signal light over Lock 33 which had been damaged by vandals the night before. Claimant, as supervisor of Lock 33, decided to fix the light on her own. She had no ladders at Lock 33 which were tall enough to reach the light fixture from below, so she attempted to perform the work by laying face down on the stairwell above the light fixture and leaning over the side and down to reach the light. She lost her balance and slid off the edge of the stairwell, landing on the walkway 13 feet below. At the time of the accident, Claimant was the Chief Lock Operator. Accordingly, she was the supervisor in charge of the area. Claimant asserts a Labor Law § 240(1) cause of action against the State as owner of the canal and the New York State Thruway Authority ("Authority") as agent of the State.CURRENT MOTIONS
I have before me two motions. With motion M-73410, Claimant seeks partial summary judgment on her Labor Law § 240(1) cause of action. With its cross-motion (CM-73906), Defendants seek summary judgment and/or dismissal of the claim.
The (apparently) simple issue in this matter is whether the activity in which Claimant was engaged at the time of her fall was protected by § 240(1) of the Labor Law. The parties agree that Claimant did sustain injuries when she fell from an elevated work station during the course of her employment with the Corporation. Defendants argue, however, that Claimant cannot maintain her Labor Law action because: 1) her claim is barred by provisions of the Workers' Compensation Law; 2) Claimant's actions were the sole proximate cause of her fall; and 3) the work Claimant was engaged in at the time of her fall was merely routine maintenance and not repair work.
I will address these contentions in order.Workers' Compensation
The Legislature created the Canal Corporation as a "subsidiary" of the Authority (Canal Law § 2) and transferred the management and control of the State's canal system "by and through" the Authority, through the Corporation (Canal Law § 6). The Authority also kept the power of the purse strings, that is, the power to raise revenue to support the canal system (Public Auth. Law § 382). The chairperson of the Canal Recreationway Commission is the chairperson of the Authority (Canal Law § 138-a). In fact, "members of the canal corporation shall be the same persons holding the offices of members of the authority" (Public Auth. Law § 382), without receipt of additional compensation for the dual role (Public Auth. Law § 382). However, the Legislature also provided areas of distinct separation.
Corporation employees are not employees of the Authority (Public Auth. Law § 382). The Corporation may independently enter into contracts, as well as sue and be sued (Public Auth. Law § 382). The Corporation may also deposit any revenues it generates into the Canal Fund (State Finance Law § 92-u), and not have it pass through the Authority.
It is clear that the Authority is itself a separate and distinct legal entity from the State that "stands on its own feet, transacts its business affairs through its own personnel and on its own initiative and is not subject to the strict requirements imposed upon a board or department of the State . . . " (Matter of Plumbing, Heating, Piping & A. C. Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 424 - 425). However, I conclude that the Corporation, while certainly separate and distinct from the State, is not a separate and distinct legal entity from the Authority. Thus, the benefits provided under the Workers' Compensation Law through the Corporation give rise to the exclusivity defense on behalf of the Authority. Claimant may not pursue a negligence claim against the Authority (Hill v State of New York, 157 Misc 2d 109). Claimant may proceed against the State.Sole Proximate Cause
Defendants maintain that there was no construction or renovation project under way at the time of Claimant's accident, and no real exigency to the need to service the light fixture involved. According to Defendants, there were larger ladders as well as a maintenance crew available to Claimant. Defendants argue that rather than request a different ladder or call the maintenance crew to repair the light, Claimant's unilateral decision to attempt to fix the light in the manner she did was the sole proximate cause of her injuries. Claimant argues that there is still a question as to whether the larger ladders allegedly available at the next lock (Lock 32) would have been appropriate for the work that needed to be done. There was testimony at the depositions of Defendants' employees that there was insufficient room at the bottom of the walk where Claimant fell for a larger ladder to be safely employed (see Farraenola E.B.T., Claimant's Ex. H, pp. 68, 69; Clifford E.B.T., Claimant's Ex. I, pp. 38, 39). Claimant also argues that, since the maintenance crew and the other larger ladders were not present at Lock 33 at the time of the accident, by definition Defendant failed to have adequate safety devices available for Claimant. However, as stated in Miro v Plaza Constr. Corp., (38 AD3d 454, 458, affd as mod 9 NY3d 948):
" Further, it is clear that a ladder does not need to be immediately at hand, either spatially or temporally, to be deemed available for purposes of Labor Law § 240(1). . . Robinson gives no indication that a proper ladder for which the plaintiff would have had to wait two hours (a period the dissent apparently finds unacceptable) would have to be deemed unavailable as a matter of law, so long as the plaintiff understood that the task could wait until the appropriate equipment became available, as was the case in Robinson and is also true here. If the wait for a fit ladder does not render it unavailable, we do not see why it should matter whether the wait is due to the ladder's being used by other workers or by the job site's distance from the stockroom."
The Court of Appeals, while not contradicting this logic, later modified the order of the Appellate Division stating that "it is not clear from the record how easily a replacement ladder could have been procured" (9 NY3d at 949). Accordingly, I find that there are questions of fact concerning the availability of proper safety devices as well as whether the conduct of Claimant was the sole proximate cause of her injuries. (see Trippi v Main-Huron, LLC, 28 AD3d 1069; Weininger v Hagedorn & Co., 91 NY2d 958; Brown v Concord Nurseries, Inc., 37 AD3d 1076, 1077).Maintenance or Repair
As the Court of Appeals has instructed, Labor Law § 240(1) "imposes absolute liability on owners and contractors for any breach of the statutory duty [specified therein] that proximately causes injury" (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 50 [internal citations omitted]). "Only work that involves 'the erection, demolition, repairing, altering or painting of a building or structure' enjoys the protection of Labor Law § 240(1)" (Wein v Amato Props., LLC, 30 AD3d 506, 507). I determined previously, for purposes of Claimant's late claim application, that Claimant was apparently performing a repair of a damaged signal light, exposing her to the risks of working at an elevated work site (Buckmann v The State of New York and The New York State Thruway Authority, Ct Cl, June 30, 2005 [Motion No. M-69559], Minarik, J., UID No. 2005-031- 053). Since that time, the development of the facts in this case and the law in this area made this a hotly contested issue between the parties in the current motions. Determining whether Claimant's activity was repair work which is covered by the Labor Law, or maintenance work, which is not, is case specific and involves the interplay of various factors (Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 883). The parties agree that the work Claimant was performing was not part of any construction or renovation project. It was an isolated event. Claimant was the only worker involved and her task at the time of the accident involved replacing a light bulb and a broken lens in a signal light affixed approximately 13 feet high on the wall above the canal walkway. As set forth by Claimant in her deposition testimony and recounted by Claimant's attorney in his supporting affidavit, the entire job consisted of the following:
"Claimant first set out to repair the fixture by replacing the bulb in the top light. In order to do so, she unscrewed two wing nuts that held the face cover in place by hand; opened the cover; replaced the bulb; closed the cover; and reapplied the wing nuts. Claimant then turned her attention to the broken lens in the bottom light. In order to replace the broken lens, claimant had to remove the two wing nuts from the face cover by hand; open the cover; unscrew 8 screws on the inside of the cover which held the lens in place (using both Phillips and Flat screwdrivers); remove the shards of the broken lens from the cover; replace it with a new lens; screw the 8 screws back into the cover; close the cover; and reapply the wing nuts" (Affidavit of Dominic Pellegrino, par. 32, 33, internal citations omitted).
Though not specifically addressed by the parties, it appears to the Court that completion of the task would have required something in the order of 15 to 20 minutes to complete. I also note that Claimant conceded in her deposition that the lens in question was a one piece component part of the signal light and spare lenses were kept on site as they needed to be replaced from time to time. Claimant testified at her deposition that she had replaced a lens in the light fixture at least once, and had replaced burned out bulbs approximately 10 times (Claimant's Ex. G, p. 60, 61).
Of course, while Defendant argues that Claimant's activity was merely maintenance, requiring the removal of a few screws and the replacement of a component part, Claimant asserts that the work at issue was the repair of a malfunctioning signal light. As stated by the Court of Appeals in Joblon v Solow (91 NY2d 457, 465), "[i]t is not important how the parties generally characterize the injured worker's role." What is required is to determine if the replacement of the bulb and lens of the signal light typifies the enumerated activity of repairing a structure. Indeed, the Court of Appeals in Prats v Port Auth. of N.Y. & N.J. (100 NY2d 878), stated that making such a determination "must be determined on a case-by-case basis, depending on the context of the work" and whether the worker was undertaking the kind of work the Legislature intended to protect.
Defendant has cited the Appellate Division Fourth Department case of Chizh v Hillside Campus Meadows Assocs. (4 AD3d 743). That case is informative both for the majority ruling and the arguments set forth by the dissent. In that case the majority found that the plaintiff was engaged in maintenance as opposed to repair work. The Court stated: "Plaintiff was injured in the course of removing, repairing and reinstalling a single window screen at an apartment complex. We conclude that those activities constitute 'routine maintenance in a non-construction, non-renovation context'" (Chizh at 744, citing Farmer v Central Hudson Gas & Elec. Corp., 299 AD2d 856, 857). Clearly the majority's determination consists of several of the same considerations involved in this matter. Indeed, the task in Chizh appears quite similar in nature to that of Claimant's. However, I find equally compelling the fact that the arguments set forth by the dissent in Chizh have no traction in this instance. The dissent pointed out that the plaintiff had been hired as a construction worker at a work site and his duties were part of a larger construction contract. None of those factors come into play in this case.
I also find that the cases that have been decided on this issue since Chizh lead me inexorably to the conclusion that the work Claimant was performing at the time of her fall at Lock 33 was routine maintenance and not the repair of a building or structure. In Arevalo v Nasdaq Stock Mkt., Inc. (28 AD3d 242 [1st Dept 2006]), the plaintiff fell from a ladder while attempting to replace a power supply box on an electric sign. The Appellate Division, First Department, determined that "[w]ork that involves only component replacement in the course of normal wear and tear is considered routine maintenance and not 'repairing' within the statute" (Id. at 243; see Gleason v Gottlieb, 35 AD3d 355 [2nd Dept 2006] [work that involved replacement of worn-out parts in a non-construction and non-renovation context did not constitute repairing for purposes of the statute]; Cordero v SL Green Realty Corp., 38 AD3d 202 [1st Dept 2007] [replacing worn-out metal slats in a motorized security gate amounted to component replacement and was not covered under that statute]; Wein v Amato Props., LLC, 30 AD3d 506 [2nd Dept 2006] [replacement of defective safety valve constituted routine maintenance and not repair of boiler for purposes of Labor Law 240(1)]). Finally, I note that Fitzpatrick v State of New York (25 AD3d 755), which is cited by Claimant for the proposition that the work Claimant performed was a repair, actually cuts contrary to Claimant's position. In Fitzpatrick, the Claimant was injured when he fell from a ladder while replacing a photo cell in light fixture in a parking lot. This work does correspond in nature with the work Claimant was performing at the time of her accident. However, while the Court in Fitzpatrick did determine that the work constituted a repair and was afforded the protection of the statute, it pointed out that the replacement of the photo cell "viewed in isolation from the totality of [plaintiff's] activities" (Id. at 756) would by itself be considered routine maintenance. In our case, the replacement of the bulb and lens was the totality of Claimant's activities. There was no larger construction or renovation context from which Claimant's actions could be considered a necessary part of an overall repair.
I find that the activity in which Claimant was engaged at the time of her accident was routine maintenance and not the repair of a building or structure. Accordingly, I have no choice but to grant Defendants' cross-motion for summary judgment.
Based upon the foregoing, it is hereby
ORDERED, that Claimant's motion (M-73410) is denied. And it is further
ORDERED, that Defendants' cross-motion for summary judgment (CM-73906) is GRANTED and the claim is hereby dismissed.
April 10, 2008
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims