LABOR LAW CLAIM OF CONSTRUCTION WORKER BURNED TO DEATH WHILE APPLYING POLYURETHANE TO FLOOR GOES FORWARD, HIS WORK WAS EQUAL TO "PAINTING"

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Pittman v. S.P. Lenox Realty, LLC

Date: Jan. 17, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving the Bronx and Queens; Queens injury lawyer)

Comment: Defendants' summary judgment motion to dismiss this accident victim=s New York Labor Law claims in Brooklyn court is denied.

This accident victim was burned to death at work while refinishing a floor with polyurethane that was ignited by a halogen lamp. The Court holds that this was equal to "painting," one of the construction-related work categories protected by New York's Labor Law.

With the defense motion denied, the case goes forward to trial.

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In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated June 22, 2010, which granted the motion of the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them is denied.

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As noted in our prior decision and order in this action (see Pittman v. S.P. Lenox Realty, LLC, 49 AD3d 621), the plaintiff's decedent (hereinafter the decedent) died after being severely burned when a halogen lamp ignited liquid that he was using to refinish the floors in an apartment in a building owned by the defendant S.P. Lenox Realty, LLC, and managed by the defendant Rubbro Realty Corp., formerly known as R.S. Management, Ltd., where the individual defendant, Larry Richards, worked as a superintendent at the building. These defendants (hereinafter collectively the defendants) moved for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them. In the order appealed from, the Supreme Court granted the motion.

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Labor Law Sec. 241(6) "imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting all areas' in which construction, excavation or demolition work is being performed" (Rizzuto v. L.A. Wenger Constr. Co., 91 N.Y.2d 343, 348, quoting Labor Law Sec. 241[6] [emphasis added]). The scope of Labor Law Sec. 241(6) is governed by section 23-1.4(b)(13) of the Industrial Code (see Joblon v. Solow, 91 N.Y.2d 457, 466; Martinez v. City of New York, 73 AD3d 993, 997), which defines "construction work" to include all work "performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" 12 NYCRR 23-1.4[b][13] [emphasis added] ).

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TELEPHONE INSTALLER INJURED IN FALL OFF LADDER WAS "ALTERING" BUILDING UNDER NEW YORK STATE LABOR LAW (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Nov 9, 2011)

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The defendants failed to establish, prima facie, that the plaintiff was not engaged in a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13). We have previously determined that the application of a protective coating to the roof of a building is the _functional equivalent_ of painting, which is a specifically enumerated activity under 12 NYCRR 23-1.4(b)(13) (see Cummings v. Vargo, 63 AD3d 1718; Artoglou v. Gene Scappy Realty Corp., 57 AD3d 460, 461; McGovern v. Fordham Hill Owners Corp., 173 A.D.2d 162; cf. Osorio v. Kenart Realty, Inc., 35 AD3d 561; Loreto v. 376 St. Johns Condominium, Inc., 15 AD3d 454; Aarons v. 401 Hotel, L.P., 12 AD3d 293). Under the circumstances of this case, the application of polyurethane to a wooden floor likewise was the functional equivalent of "painting." Since the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, their motion should have been denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

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