July, 2004This opinion is uncorrected and subject to revision before publication in the New York Reports.
1 No. 98 Anthony Abbatiello, Jr., et al., Appellants, v. Lancaster Studio Associates &c., et al., Respondents, v. Paragon Cable Manhattan, Inc., et al., Third-Party Respondents.
Raymond Carey, for appellants.
Sherwin Rear, for respondents.
Michael H. Zhu, for third-party respondents.
This case presents the question whether a building owner may be held strictly liable under Labor Law § 240 (1) for injuries sustained by a cable technician performing work on its property without its knowledge or consent. We conclude that, under the circumstances of this case, the cable technician does not come within the protections of the section.
Plaintiff Anthony Abbatiello was a cable television technician employed by third-party defendant Paragon Cable Manhattan, Inc. On August 12, 1995, Paragon dispatched plaintiff to a building owned by defendant Lancaster Studio Associates in response to the complaint of a tenant who was a cable service subscriber. Lancaster had no notice that plaintiff would be on its premises for any purpose.
While on the property, plaintiff rang the subscriber's doorbell and attempted to enter the building -- both to no avail. As he had previously done work at that location, plaintiff proceeded to identify the junction box that routed the cable signal into the subscriber's apartment. The box was bolted on an exterior wall of the building, about 15 to 20 feet above ground level. To access the box, plaintiff placed a 20-foot extension ladder, which had been supplied by Paragon, against the side of the building. He climbed the ladder, equipped to take the cable box apart, diagnose and fix the problem. Following inspection, plaintiff determined that the defective signal was caused by water seeping into the junction box. However, before he could take any further action, the ladder bent, causing plaintiff to fall to the ground and injure himself.
Plaintiff later commenced this action against Lancaster and its individual partners alleging common law negligence and violations of Labor Law §§ 200, 240 and 241. Lancaster brought a third-party action against Paragon, and Paragon counterclaimed. Lancaster moved for summary judgment dismissing the complaint and counterclaims, and Paragon separately sought dismissal of the complaint. Supreme Court granted both motions and dismissed the complaint in its entirety. The Appellate Division, with one Justice dissenting, affirmed, concluding that there could be no Labor Law § 240 (1) liability here both because the owner did not authorize or even know of plaintiff's presence, and because the work being performed was routine maintenance (307 AD2d 788 . We now affirm on both grounds.
The Parties' Relationship
In Blake v Neighborhood Hous. Serv. of New York City, Inc. (1 NY3d 280 ), we recently reviewed the history and purposes of Labor Law § 240 (1). We reaffirmed the rule that an accident alone does not establish a Labor Law § 240 (1) violation, and that absolute liability requires a violation of the statute. We found no violation in Blake and likewise find no violation here.
We have consistently "observed that the purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves" (Panek v County of Albany, 99 NY2d 452, 457  [citations omitted]). Accordingly, the statute imposes absolute liability on owners and contractors for any breach of the statutory duty that proximately causes injury (see Blake, 1 NY3d at 287). To come within the special class for whose benefit absolute liability is imposed, a plaintiff must demonstrate that "he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it [the] owner, contractor or their agent" (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 ).
Following the Whelen line of precedent, the First Department has generally held that a cable technician called to a building by a tenant without the knowledge or consent of the owner is not an employee for purposes of Labor Law § 240 (1) and therefore is not afforded the protections of that statute against the owner (see Ceballos v Kaufman, 249 AD2d 40 [1st Dept 1998]). On the other hand, relying on Celestine v City of New York (86 AD2d 592 [2d Dept 1982], affd 59 NY2d 938 ) and its progeny -- Gordon v Eastern Ry. Supply, Inc. (82 NY2d 555 ) and Coleman v City of New York (91 NY2d 821 ) -- the Second and Third Departments have held building owners strictly liable for the injuries of such workers on the ground that ownership alone may determine whether defendant is liable under § 240 (1). Persuaded by the distinctions between Celestine and its progeny and the facts presented here, we refuse to impose absolute liability on an owner where a cable technician is injured while performing work without the owner's knowledge or consent.
Common to Celestine, Gordon and Coleman -- and to all cases imposing Labor Law § 240 (1) liability on an out-of-possession owner -- is some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest. Here, however, no such nexus exists. The injured plaintiff was on the owner's premises not by reason of any action of the owner but by reason of provisions of the Public Service Law.
Public Service Law § 211 states the purpose of article 11 -- "to ensure that cable television companies provide adequate, economical and efficient service to their subscribers, the municipalities within which they are franchised and other parties to the public interest." According to § 228 (1), "No landlord shall (a) interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:
(1) that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well being of other tenants."
Plaintiff argues that, notwithstanding the mandatory access imposed by Public Service Law § 228 (1), Lancaster should be deemed an "owner" for purposes of § 240 (1) as it maintained a degree of control over the work and would have knowledge -- albeit constructive -- that Paragon employees would be coming upon its property periodically to effectuate repairs at the request of tenant-subscribers. We disagree.
Lancaster is powerless to determine which cable company is entitled to operate, repair or maintain the cable facilities on its property, since such decision lies with the municipality -- the franchisor (see Public Service Law § 219). The City of New York gave Paragon the franchise, and the right to install its cable facilities. This included the right to maintain and service its facilities at the premises free from interference after installation (see Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 439 ). Neither did Lancaster incur liability for injury to a cable company employee by failing to exercise its right under the statute to require "reasonable conditions" for the protection of its property and tenants when the employee installs the cable (see Public Service Law § 228  [a] ).
Lancaster cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law § 240 (1) for cable television repair people of whom it is wholly unaware. Supreme Court correctly noted that, but for § 228, plaintiff would be a trespasser upon Lancaster's property and Lancaster would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between Lancaster and Paragon or the plaintiff.
Having found no nexus here, we conclude that plaintiff is not an employee for purposes of Labor Law § 240 (1) and that Public Service Law § 228 does not impose constructive notice on a building owner nor does it subject the owner to liability under Labor Law § 240 (1). We thus agree with Supreme Court that "[t]he Public Service Law was enacted to secure the right of the tenant to have access to cable television services not to impose unconditional liability upon a defenseless fee owner. The interpretation suggested by the plaintiff goes far beyond the scope of the language employed in each statute, so as to create a new liability with respect to cable service workers which was not envisioned by the Legislature."
The Nature of the Work
We also agree with the Appellate Division that plaintiff, at the time of his accident, was involved in "the routine maintenance of a malfunctioning cable box and [the work] did not constitute 'erection, demolition, repairing, altering, painting, cleaning or pointing of a building' so as to fall within the protective ambit of Labor Law § 240 (1)" (307 AD2d 788, 789 [citations omitted]).
Plaintiff here was engaged in an activity similar to that of plaintiff in Esposito v New York City Indus. Dev. Agency (1 NY3d 526 ), who was performing a monthly maintenance check on air conditioners located high off the ground. One unit appeared in need of repair, and plaintiff left and returned with tools and parts. As he climbed the ladder and began to remove the unit cover, the bottom of his ladder "kicked out" and he fell. We held that "[t]he work . . . involved replacing components that require replacement in the course of normal wear and tear. It therefore constituted routine maintenance and not 'repairing' or any of the other enumerated activities" (Esposito, 1 NY3d at 528). Likewise here, plaintiff determined that the cause of the defective signal was water in the tap, a common problem caused by rain water accumulating in junction boxes affixed to building exteriors. The remedy would have been to loosen a few screws and drain the water from the tap and, if worn out, replace the tap. These activities constitute routine maintenance and not repair as contemplated by Labor Law § 240 (1).
Accordingly, the order of the Appellate Division should be affirmed, with costs.
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Order affirmed, with costs. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Smith, Rosenblatt, Graffeo, Read and Smith concur.
Decided July 1, 2004
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