Labor - Safe Place to Work - Elevation-Related Hazard - Work Necessary and Incidental to Protected Activity - Truck Driver Delivering and Unloading Tiles to be Used in Protected Activity

Labor - Safe Place to Work - Construction Site - Fall into Hole Near Temporary Loading Dock Ramp - Statutory Agent - Electrical Contractor

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered on or about October 27, 2023, which, to the extent appealed from as limited by the briefs, granted so much of defendant Five Star Electric Corp. (Five Star) for summary judgment dismissing the Labor Law §§ 200, 240 (1), and 241 (6) claims as against it, denied plaintiff's motion for leave to amend his bill of particulars to assert a violation of an additional Industrial Code (12 NYCRR) regulation, and, thereupon, for partial summary judgment on the issue of liability on his Labor Law §§ 240 (1) and 241 (6) claims, and granted the cross-motion of defendants Riverside Center 5 Owner LLC (Riverside) and Tishman Construction Corporation (Tishman; together with Riverside, defendants) for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims as against them, unanimously modified, on the law, to deny defendants' motions as to the Labor Law § 240 (1) claim, that claim reinstated as against defendants, and to grant plaintiff's motion to the extent of granting him partial summary judgment as to liability on that claim as against defendants, and otherwise affirmed, without costs.

Plaintiff was injured while working as a delivery truck driver for third-party defendant Port Morris Tile Corp. (Port Morris). Plaintiff had just completed a delivery of tiles for other employees to install when he stepped and fell into a two-foot by three-foot hole near a temporary loading dock ramp. Riverside owned the premises, Tishman was the construction manager for the work taking place, and Five Star was the electrical contractor responsible for installing temporary lighting during the project.

Labor Law § 240 (1) protects persons engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." The task that a plaintiff is performing at the exact moment of their accident is not dispositive of whether they were engaged in a protected activity for purposes of liability under this statute (see generally Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-882 [2003]). Rather, the inquiry includes whether the plaintiff's employer was contracted to perform the kind of work enumerated in the statutes (see Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108, 1109 [1991]) and whether the plaintiff was performing work "necessary and incidental to" a protected activity (Nagel v Metzger, 103 AD2d 1, 9 [4th Dept 1984]; see e.g. Longo v Metro-North Commuter R.R., 275 AD2d 238, 239 [1st Dept 2000]). Because plaintiff's work in delivering and unloading tiles to be used in the activity covered by Labor Law § 240 (1) was "necessary and incidental" to the protected activity, he was within the class of workers protected by those statutes, notwithstanding that he was not assigned to participate in the installation of the tiles (see Saint v Syracuse Supply Co., 25 NY3d 117, 125 [2015] [rejecting an interpretation of Labor Law § 240 (1) that "would compartmentalize [*2]a plaintiff's activity and exclude from the statute's coverage preparatory work essential to the enumerated act"]; Prats, 100 NY2d at 882 ["(I)t is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work"]; Rodriguez v Riverside Ctr. Site 5 Owner LLC, 231 AD3d 603, 604 [1st Dept 2024] [holding that a worker washing a cement truck following a cement delivery to a construction site was covered by Labor Law § 240 (1)]). Accordingly, plaintiff's motion for partial summary judgment as to liability on his Labor Law § 240 (1) claim should have been granted as against defendants, and defendants' motions should have been denied insofar as they sought summary judgment dismissing that claim.^[FN*]

However, we affirm the award of summary judgment to Five Star dismissing the Labor Law §§ 200, 240 (1), and 241 (6) claims as against it, but on a different rationale than that offered by the motion court. Labor Law §§ 200, 240 (1), and 241 (6) only apply to owners, general contractors, and their statutory agents (see e.g. Pimentel v DE Frgt. LLC, 205 AD3d 591, 593 [1st Dept 2022]; Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189, 192-193 [1st Dept 2011]; Alfonseca v Van-Tag Constr. Corp., 39 AD3d 266, 266 [1st Dept 2007]). "To be treated as a statutory agent, the subcontractor must have been delegated the supervision and control either over the specific work area involved or the work which [gave] rise to the injury. If the subcontractor's area of authority is over a different portion of the work or a different area than the one in which the plaintiff was injured, there can be no liability under this theory" (Nascimento, 86 AD3d at 193 [internal quotation marks and citation omitted]). Here, Five Star's work as the electrical contractor was limited to providing electrical installation and temporary lighting, and did not encompass either tile work or maintaining the temporary ramp or surrounding areas. Accordingly, the Labor Law §§ 200, 240 (1), and 241 (6) claims were properly dismissed as against Five Star on the basis that it was not a proper Labor Law defendant.

We have considered the parties' remaining arguments and find them unavailing. Concur—Webber, J.P., Friedman, Scarpulla, Rosado, O'Neill Levy, JJ.

The decision and order of this Court entered herein on January 28, 2025 (234 AD3d 623 [1st Dept 2025]) is hereby recalled and vacated (see 2025 NY Slip Op 72864[U] [1st Dept 2025] [decided simultaneously herewith]).