        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

568
CA 13-01811
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


ROBERT BISH, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ODELL FARMS PARTNERSHIP, DEFENDANT-APPELLANT.


BRIAN P. FITZGERALD, P.C., BUFFALO (DEREK J. ROLLER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LEWIS & LEWIS, P.C., BUFFALO (EMILY F. JANICZ OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(Deborah A. Chimes, J.), entered July 10, 2013. The order, insofar as
appealed from, denied in part the motion of defendant for summary
judgment.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs, the motion is granted in its
entirety, and the complaint is dismissed.

     Memorandum: Plaintiff, a cement truck driver, commenced this
Labor Law action seeking damages for injuries he sustained while he
was cleaning the truck on property owned by defendant, a dairy farm
operator. Defendant contracted with plaintiff’s employer, a cement
supplier, to deliver cement to the farm property for the construction
of a bunk silo. On the date of the accident, plaintiff delivered a
load of cement to the farm property in a truck owned by his employer.
After the truck was unloaded, plaintiff drove the cement truck to an
area of the farm property adjoining a ditch in order to wash out the
truck. Plaintiff climbed a ladder permanently affixed to the truck
and washed out the truck using an attached hose and water tank. As
plaintiff was descending the ladder, he slipped on a wet rung and fell
backwards into the ditch. As relevant on appeal, defendant moved for
summary judgment dismissing the complaint, and Supreme Court granted
the motion only in part, denying the motion with respect to the Labor
Law § 240 (1) cause of action and the Labor Law § 241 (6) cause of
action insofar as it was premised on the violation of 12 NYCRR 23-1.7
(d) (8). We conclude that the court should have granted the motion in
its entirety.

     It is well settled that Labor Law § 240 (1) “provides rights to
certain workers going well beyond the common law . . . [I]t imposes
liability even on contractors and owners who had nothing to do with
                                 -2-                           568
                                                         CA 13-01811

the plaintiff’s accident; and where a violation of the statute has
caused injury, any fault by the plaintiff contributing to that injury
is irrelevant” (Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521, 524).
“The Legislature, however, afforded this protection only to workers
‘employed’ in the ‘erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure’ ” (id. at
524-525; see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 880).
Although “Labor Law § 240 (1) is to be construed as liberally as
necessary to accomplish the purpose of protecting workers” (Wicks v
Trigen-Syracuse Energy Corp., 64 AD3d 75, 78; see Martinez v City of
New York, 93 NY2d 322, 325-326), “the language of Labor Law § 240 (1)
‘must not be strained’ to accomplish what the Legislature did not
intend” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,
292, quoting Martinez, 93 NY2d at 326; see Wicks, 64 AD3d at 79).

     Here, we agree with defendant that the activity in which
plaintiff was engaged at the time of his injury, i.e., the routine
cleaning of his employer’s cement truck after making a delivery, “was
‘not the kind of undertaking for which the Legislature sought to
impose liability under Labor Law § 240’ ” (Wicks, 64 AD3d at 79,
quoting Brown v Christopher St. Owners Corp., 87 NY2d 938, 939, rearg
denied 88 NY2d 875; see Wittmeyer v Holland Cent. Sch. Dist., 255 AD2d
921, 921-922, lv denied 93 NY2d 801; Koch v E.C.H. Holding Corp., 248
AD2d 510, 511-512, lv denied 92 NY2d 811). Specifically, plaintiff
“was not engaged ‘in the erection, demolition, repairing, altering,
painting, cleaning or pointing’ of a ‘building or structure’ within
the intended meaning of Labor Law § 240 (1)” (Gentile v New York City
Hous. Auth., 228 AD2d 296, 296, lv dismissed 89 NY2d 981). Rather, he
was “engaged in routine maintenance” of the cement truck, “which is
not a protected activity under Labor Law § 240 (1)” (Pasquale v City
of Buffalo, 255 AD2d 874, 875; see Selak v Clover Mgt., Inc., 83 AD3d
1585, 1586; Koch, 248 AD2d at 511-512).

     We reject the dissent’s view that this case is distinguishable
from Koch because the plaintiff in that case was “merely a delivery
driver” while “there is evidence here that plaintiff operated the
machinery of the cement truck to assist in the pouring of the concrete
as part of the construction of the silo.” Any such distinction, even
if supported by the record, is irrelevant to the applicability of
Labor Law § 240 (1).

     Contrary to the further assertion of the dissent, plaintiff’s
statement that he would have returned to the farm property with
additional cement but for his accident does not raise an issue of
fact. Plaintiff admitted that, per “standard procedure,” “a cement
truck must be washed down after each use to remain functional.” Thus,
plaintiff’s actions in washing out the truck were unrelated to the
erection of the silo.

      We further agree with defendant that Labor Law § 241 (6) does not
apply here because plaintiff “was not engaged in ‘construction work’
within the meaning of the statute when he fell” (Koch, 248 AD2d at
512).
                                 -3-                           568
                                                         CA 13-01811

     All concur except WHALEN, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent because I disagree
with the majority’s conclusion that the activity in which plaintiff
was engaged, i.e., cleaning his employer’s cement truck after making a
delivery, was not covered by Labor Law §§ 240 (1) and 241 (6). I
therefore would affirm the order denying those parts of defendant’s
motion with respect to the Labor Law § 240 (1) cause of action and the
Labor Law § 241 (6) cause of action insofar as it was premised on the
violation of 12 NYCRR 23-1.7 (d) (8).

     Specifically, if we view the evidence presented on the motion in
the light most favorable to the nonmoving party, as we must (see
Krampen v Foster, 242 AD2d 913, 914-915), and we construe Labor Law §
240 (1) liberally to accomplish its purpose of protecting workers (see
Panek v County of Albany, 99 NY2d 452, 456-457), it is clear that
there are issues of fact regarding whether plaintiff was engaged in
the erection of a building or structure within the meaning of Labor
Law § 240 (1). In this case, there is evidence that plaintiff not
only drove the truck but also operated its equipment and poured the
concrete. Plaintiff testified at his deposition that had he not been
injured, he would have delivered additional loads of concrete to the
farm for the silo construction project. He also testified that, in
order to put a second load of cement in the truck, it had to be washed
out after the first load was delivered. This is evidence that
plaintiff was on a continuous loop where he would bring a load to
defendant’s farm, unload it from the truck and then plaintiff would
wash out his truck so that he could travel to get another load and
return to the farm and repeat the process. There is also evidence
that cleaning the truck was an essential part of the erection of the
silo because it was required so that plaintiff could continue to bring
loads of concrete in order to allow the erection of the silo to
continue.

     I note that plaintiff’s activities in relationship to the project
here are different from those of the plaintiff in Koch v E.C.H.
Holding Corp. (248 AD2d 510, 511, lv denied 92 NY2d 811) because the
plaintiff there was merely a delivery driver, whereas there is
evidence here that plaintiff operated the machinery of the cement
truck to assist in the pouring of the concrete as part of the
construction of the silo. I note that I do not agree with the trial
court’s finding that plaintiff was an integral and necessary part of
the construction work being performed and therefore was protected
under the Labor Law, but I believe there are questions of fact on this
issue that require denial of defendant’s motion with respect to Labor
Law § 240 (1) (see Zuckerman v City of New York, 49 NY2d 557, 562).

     For the foregoing reasons, I also disagree with the majority’s
conclusion that Labor Law § 241 (6) does not apply because issues of
fact exist regarding whether plaintiff was engaged in “ ‘construction
work’ within the meaning of the statute when he fell” (Koch, 248 AD2d
                          -4-                  568
                                         CA 13-01811

at 512).




Entered:   July 3, 2014         Frances E. Cafarell
                                Clerk of the Court
