dissents in part in a memorandum as follows: While I agree with the majority that Supreme Court correctly denied that branch of defendant NY-1095 Avenue of the Americas, LLC’s (NY-1095) motion for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence claims, I would find that the court erred in denying dismissal of the Labor Law § 240 (1) claim. Accordingly, I respectfully dissent.
In October 2008, plaintiff, who was employed as a painter by nonparty Cosmopolitan Decorating Co., Inc. (Cosmopolitan), was assigned to do painting work on certain floors at a building located at 1095 Avenue of Americas, a 42-story commercial office building with many different tenants, owned by defendant NY-1095. NY-1095 leased floors 13-20 and 40-41 to nonparty Metropolitan Life Insurance Company (MetLife), which was doing renovation work on the leased floors. MetLife hired defendant Structure Tone as general contractor to perform renovations, which in turn hired Cosmopolitan to perform painting in MetLife’s leased space.
In order to access the construction project on floors 13-20 and 40-41, plaintiff first had to enter the building through a loading dock entrance. Paul Gordon, then general manager of the building, testified that, in October 2008, workers used the building’s service entrance through a loading dock located on 41st Street, signed in with security before gaining access to the building, and would then take the freight elevator to the floors where the renovation work was being performed. Gordon stated that a concrete ramp to the right of the loading dock led to the landing of the loading dock. The ramp had railings, but the loading dock did not because “[fit would stop a truck from being able to make a delivery on that dock.”
Plaintiff testified that, each morning at approximately 6:30 a.m., he and other contractors reported to the loading dock of the building, to wait for the door to open so they could sign in at a security desk. After signing in, he would take a freight elevator to the floor where he was painting, and change into his work clothes. Plaintiff testified that he worked at the site for more than a month before his accident. He always signed in at the loading dock once a day, sometimes more often if “we had to go down to receive a delivery for paint.”
According to Gary Trobe, who measured the loading dock on behalf of NY-1095, the dock was just under four feet high. Plaintiff claimed the loading dock was five feet high.
Plaintiff testified that on the day of the accident he was standing on the loading dock, looking at a door, waiting for his turn to sign in. One person was ahead of him, and more than 10 were behind him in line. James Joyce, of Structure Tone, also stated that there was a large group of people waiting to sign in. According to plaintiff, as he was about to sign in, someone with identification behind him said: “[E]xcuse me. I need to go through.” Plaintiff, who did not recall how close he was to the edge of the dock, took “a half step” back and fell off the loading dock. He stated that he did not trip on anything, and the accident did not involve any debris or slipping.
Labor Law § 240 (1) protects workers engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (see Martinez v City of New York, 93 NY2d 322, 326 [1999]; see also Soto v J. Crew Inc., 21 NY3d 562, 566 [2013]). In addition, to recover, the plaintiff must have suffered an injury as “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
The majority, in invoking Labor Law § 240 (1) in this case, has expanded its application to include an injured worker who was not at the work site and not engaged in any enumerated activity under the statute at the time of his injuries, and a fall from a height which the Court of Appeals has deemed not to constitute a significant elevation differential to warrant application of section 240 (1). This is a substantial departure from the legislature’s clear intent in promulgating section 240 (1) and the case precedents concerning the statute issued by the Court of Appeals.
While section 240 is to be construed liberally to accomplish its purpose (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]), “the statutory language must not be strained in order to encompass what the Legislature did not intend to include” (Martinez v City of New York, 252 AD2d 545, 546 [2d Dept 1998], affd 93 NY2d 322 [1999], quoting Karaktin v Gordon Hillside Corp., 143 AD2d 637, 638 [2d Dept 1988]). Further, “there is a bright line separating . . . enumerated and nonenumerated work” (Beehner v Eckerd Corp., 3 NY3d 751, 752 [2004] [holding that injuries occurring before or after an enumerated activity are not within the purview of section 240 (1)]; see also Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 753 [2d Dept 2014] [holding section 240 inapplicable because “the accident occurred before the plaintiff and his decedent had begun any work that conceivably could have been covered under these sections of the Labor Law”]).
In this case, since plaintiff was not engaged in an activity enumerated by the statute, had not yet begun his work and was not physically on the construction site, and did not face a significant elevation differential, his cause of action based on Labor Law § 240 should be dismissed.
To reiterate, in order to determine whether plaintiff should be afforded the protections of Labor Law § 240 (1), we look at (1) whether he was engaged in an enumerated activity, (2) whether he was on the construction site, and (3) whether he faced a significant gravity related risk. Here, none of these factors are present.
Initially, the majority’s statement that because “plaintiff’s painting assignment related to a construction/renovation project within the building plaintiff was unquestionably engaged in an enumerated activity” is unsupported by the facts of this case, and contrary to case precedent. In an effort to support its ultimate conclusion, the majority erroneously reasons that because plaintiff was required to use the loading dock entrance in order to enter the building and eventually reach the floor on which he was working, he was somehow engaged in an enumerated activity. However, in no reading of the section could a worker merely waiting to sign into a building be found to be engaged in an enumerated activity. Indeed, waiting in line to sign in and enter a building cannot possibly qualify as engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Simply, plaintiff was not even working at the time of his fall and thus cannot possibly invoke the application of section 240 (1).
It should be noted that not all of the building was under renovation. It was only the floors leased by MetLife which were being renovated. The other floors in this 42-story office building were occupied by other tenants who were operating their respective businesses. It is quite a stretch for the majority to conclude that the building was a work site. In fact, the work site was only on floors 13-20 and 40-41 where construction work was being performed in the building. Stated differently, the construction site is the location where the work enumerated in section 240 (1) is taking place. Therefore, because no work of any kind related to the construction work on the upper floors was taking place at the loading dock, the loading dock entrance cannot be considered a part of the construction site.
The majority argues that finding the loading dock not to be part of the construction site “ignores the reality of what construction workers employed on projects in high rise buildings face.” In this regard, the majority stresses repeatedly that plaintiff was required to use the loading dock entrance to reach the floor he would be painting. However, in order to extend the protections of the Labor Law to the loading dock, we must consider the context of the work and the accident. Here, the loading dock was not where the renovation of MetLife’s space was taking place, and plaintiff was not carrying out a task that was connected to any enumerated activity.
The majority also posits that becausé section 240 (1) does not define “construction site” we can extend the work site in this case to the entrance of a building where renovation work was being performed on certain floors contained therein. However, limiting the section’s coverage to the actual location where the enumerated activities are taking place is a commonsense, reasonable interpretation of the statute employed by the courts in these cases.
Nor was plaintiff facing a risk arising from a physically significant elevation differential. Critically, plaintiff was injured before he began any covered activity as he stood on a large and stable four-foot high loading dock waiting to sign in and enter the building. While the majority deems the height of the dock not to be de minimis, they fail to address or even acknowledge the Court of Appeals’ position on this issue (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005]).
The majority ignores the most fundamental principle applicable to these cases which is “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” (O’Brien v Port Auth. of N.Y. & N.J., 29 NY3d 27, 33 [2017], citing Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Toefer at 407; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288 [2003]; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Indeed, while plaintiff may have valid Labor Law § 200 and common-law negligence claims, the fact that he fell does not equate to a sustainable section 240 claim. Once again, the loading dock here was not a part of the construction site.
Further, as the Court of Appeals explained in Rocovich (78 NY2d at 513), a violation of the statute cannot “establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury” (internal quotation marks omitted).
The “special hazards” referred to in Rocovich, do not “encompass any and all perils that may be connected in some tangential way with the effects of gravity” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). Rather, they are: “limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured ... In other words, Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (id.).
Here, as the majority notes, the section “protects workers engaged in enumerated work activities” and since plaintiff was not so engaged at the time of the accident and was not subjected to a significant gravity-related risk, there is no basis to extend the protections of the statute in this case. Further, what type of protective device prescribed under section 240 (1) can be provided to a worker who was injured while waiting on a loading dock to sign in before entering a building where he would then take a freight elevator to the floor where he was assigned to do painting work? Plaintiff testified that neither a safety belt nor harness would have prevented the accident. Clearly, this is not the type of accident section 240 (1) was intended to prevent.
The cases upon which the majority and plaintiff rely are inapposite. Indeed, the circumstances of those cases allowed for a reasonable extension and liberal construction of section 240 to accomplish its purpose. Specifically, those cases, unlike this one, involved workers exposed to special hazards related to work site elevation differentials, such as collapsing scaffolds or other failed safety devices, or unmarked pits or gaps on the work site. Here, however, extending section 240 to protect plaintiff requires a strained interpretation of the statutory language far beyond what the legislature intended, and in conflict with controlling Court of Appeals precedent.
The first category of these cases involve accidents where the plaintiffs were not engaged in an enumerated activity at the moment when the accident occurred, but took place at the work site. In Morales v Spring Scaffolding, Inc. (24 AD3d 42 [1st Dept 2005]), the plaintiff was situated on a sidewalk bridge used as a staging area and as an entryway onto the scaffolding. The accident occurred when, during his lunch break, the plaintiff fell from the bridge as it collapsed. In Reinhart v Long Is. Light. Co. (91 AD2d 571 [1st Dept 1982], appeal dismissed 58 NY2d 1113 [1983]), the scaffold collapsed not when the plaintiffs were engaged in plumbing, but when they were discussing payroll and time sheet problems. However, a critical distinction is that those accidents occurred on the job site and took place on scaffolds or bridges, devices constructed to give workers proper protection, but which were defective.
Here, the loading dock was not where the renovation of MetLife’s space was taking place, and plaintiff was not carrying out a task that was connected to any enumerated activity (cf. Rivera v Squibb Corp., 184 AD2d 239, 240 [1st Dept 1992] [the plaintiff injured on a loading dock area while engaged in removing construction debris, in connection with demolition work performed on the 25th through 27th floors]).
Further, unlike the scaffold or bridge in the foregoing cases, the loading dock here was a permanent structure and appurtenance of the building, and was not temporarily constructed to give plaintiff proper protection during his work. Nor was it being used as a safety device to gain access to an elevated work site. Ryan v Morse Diesel (98 AD2d 615 [1st Dept 1983]) is instructive. In Ryan, the plaintiff was injured when, “carrying a bucket of bolts, he stubbed his toe and fell while walking down a permanently installed but unfinished interior stairway of the hotel under construction” {id. at 615). We found Labor Law § 240 (1) inapplicable, stating: “under no construction [of the statute] can this permanently installed stairway, used by the plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope. The stairway was not a tool used in the performance of the plaintiffs work” {id. at 616).
In Brennan v RCP Assoc. (257 AD2d 389, 391 [1st Dept 1999], lv dismissed 93 NY2d 889 [1999]) we further explained that “the determinative criterion in Ryan is not the permanence of the structure but its character as a normal appurtenance of the building rather than a device designed to protect the worker from elevation-related hazards.” Thus, in Brennan, we found section 240 applicable to a platform “installed precisely to afford access to the building’s cooling towers so as to permit normal maintenance and repairs to be carried out” (id. at 391; see also Cassidy v Highrise Hoisting & Scaffolding, Inc., 89 AD3d 510 [1st Dept 2011] [finding section 240 applicable to defective temporary loading dock installed to protect workers]). By contrast, the loading dock in this case was a normal appurtenance of the building and not a device designed to protect plaintiff from elevation-related hazards. Yet, the majority would avoid this key distinction between permanent fixtures and devices designed to protect workers. In so doing, the majority misplaces reliance on cases, discussed below, where upon entering the site the worker is subjected to a significant gravity related hazard (see e.g. Amante v Pavarini McGovern, Inc., 127 AD3d 516 [1st Dept 2015]).
The second category of cases involve plaintiffs injured while entering and exiting the construction site. In Alarcon v UCAN White Plains Hous. Dev. Fund Corp. (100 AD3d 431 [1st Dept 2012]), the plaintiff, while in the process of exiting the site, fell 3V2 stories from a scaffold and connected makeshift staircase which lacked guardrails. In Amante (127 AD3d at 516), the plaintiff fell into a 12 to 15 foot deep excavation pit after entering through an open gate—the only entrance provided—and crossing onto the job site. In Campisi v Epos Contr. Corp. (299 AD2d 4 [1st Dept 2002]), the plaintiff entered the threshold of the building entrance, fell through a gap between two flooring joists, and ended up dangling between the first floor and the basement. Notably, all of these accidents occurred on the job site and involved either a device constructed to provide protection which was defective or an unmarked pit/gap which created an exposure to an elevation-related risk. Such circumstances do not exist here. In relying on these cases, the majority appears to ignore the significant facts of those cases that the accident occurred at the work site and especially the significant gravity-related risks to the workers. Instead, they focus only on the fact that the workers were not performing their tasks at the time of the accident.
Controlling precedent from the Court of Appeals dictates that when a worker is on a “large and stable surface only four feet from the ground!,] [t]hat is not a situation that calls for the use of a device like those listed in section 240 (1) to prevent a worker from falling” (Toefer v Long Is. R.R., 4 NY3d at 408). As set forth in Toefer: “A four-to-five-foot descent from a flatbed trailer or similar surface does not present the sort of elevation-related risk that triggers Labor Law § 240 (l)’s coverage. Safety devices of the kind listed in the statute are normally associated with more dangerous activity . . . Obviously, the distance between the work platform and the ground is relevant; no one would expect a worker to come down without a ladder or other safety device from a work platform that was 10 feet high. But the lesser distance Marvin had to travel, considering the nature of the platform he was departing from, was not enough to make Labor Law § 240 (1) applicable” {id. at 408-409 [emphasis added]).
Therefore, since the loading dock from which plaintiff fell was a stable surface no more than four feet high, and there are no other circumstances in this case which created a significant gravity related risk, Labor Law § 240 (1) is inapplicable. The majority’s statement that plaintiff’s fall from a loading dock three or four feet off the ground “cannot be described as a fall from a de minimus height” is in direct conflict with the Court of Appeals in Toefer, which this Court is bound to follow. As a matter of law, plaintiff’s fall from the four foot high permanent loading dock under similar circumstances as in Toefer was not “enough to make Labor Law § 240 (1) applicable” (4 NY3d at 409). The majority also relies on inapposite cases involving falls of 30 and 40 feet (see Cruz v Cablevision Sys. Corp., 120 AD3d 744 [2d Dept 2014]; Dalaba v City of Schenectady, 61 AD3d 1151 [3d Dept 2009]), which are clearly distinguishable from the facts of this case which involves a four foot drop.
Moreover, the majority’s discussion of the lack of railings, chains, demarcations or other protective devices on the loading dock and the fact that plaintiff did not countermand any orders when he entered via the loading dock is inconsequential given the foregoing binding precedent. These points may be relevant to plaintiff’s Labor Law § 200 and common-law negligence claims.
Accordingly, I would modify the order on appeal to the extent of granting that branch of NY-1095’s motion for summary judgment dismissing plaintiff’s Labor Law § 240 (1) claim.