Plaintiff alleged that he was injured on December 5, 2013, while employed by Hassan Construction, who was retained by the insured to replace the boiler with an equivalent unit. Plaintiff claimed that his hand was fractured by a pipe used by plaintiff and the other workers as a make-shift ramp to help slide the replacement boiler down 3 steps, while moving the new boiler into the basement of the defendant’s premises. Plaintiff alleged violations of Labor Law, Sections 240(1) and 241(6).
We argued that, to establish a claim under Labor Law section 240 (1), also known as “the scaffold law,” Plaintiff must be able to establish that the plaintiff’s work constituted “alteration” of a building or structure. Plaintiff could not meet this threshold question since the replacement of the hot water did not constituted an “alteration” under Labor Law 240 (1). We argued that the work was not complex, since it did not require breaking through walls or physical alteration of the actual structure. Although Plaintiff cited the Vessio case which held that the replacement of a boiler is actionable under Labor Law 240, we pointed out that that case cited no facts, so we obtained the appellate briefs in order to distinguish the facts in our case.
We argued that, unlike in Vessio, where the plaintiff had to climb down a ladder, cut through the boiler and open the walls, here, the contractor and plaintiff’s boss, merely removed the existing pipe fittings to the oil fired heater and capped the oil pipe supply. He merely installed a 4 foot pipe from the existing gas supply line, which was in the boiler room, to be connected to the gas fired heater. Contractor/boss used basic tools to remove, replace and refit the boiler into the existing space. He did not have to use any machinery or equipment other than basic plumbing tools used to replace boilers or do any additional work which would change the structure or configuration of the insured’s premises.
We also argued that the Labor Law did not apply because the accident did not involve a fall from a height and was not gravity related, since there was no falling object or falling person and the accident was unrelated to any risk of falling. Unlike in Vessio, where the plaintiff was climbing on a ladder while carrying the boiler, in our case the plaintiff was merely carrying the boiler down an interior staircase, when a pipe sprung up and injured his hand.
We argued that the pipe used as a ramp did not constitute an enumerated safety device under Labor Law 240(1); and that the stairway (unlike the ladder in Vessio) was a passageway not a tool, under Labor Law 240(1).
Under 241(6), we argued that the Industrial Codes cited are not applicable to support a Labor Law action in that they merely addressed general safety requirements , but were not concrete specifications.
After oral argument, Judge Edwards, reserved decision and later granted the motion.
Lefruy v. Lori-Lane Enterprises, Index No. 20/2014
We argued that, unlike in Vessio, where the plaintiff had to climb down a ladder, cut through the boiler and open the walls, here, the contractor and plaintiff’s boss, merely removed the existing pipe fittings to the oil fired heater and capped the oil pipe supply. He merely installed a 4 foot pipe from the existing gas supply line, which was in the boiler room, to be connected to the gas fired heater. Contractor/boss used basic tools to remove, replace and refit the boiler into the existing space. He did not have to use any machinery or equipment other than basic plumbing tools used to replace boilers or do any additional work which would change the structure or configuration of the insured’s premises.
We also argued that the Labor Law did not apply because the accident did not involve a fall from a height and was not gravity related, since there was no falling object or falling person and the accident was unrelated to any risk of falling. Unlike in Vessio, where the plaintiff was climbing on a ladder while carrying the boiler, in our case the plaintiff was merely carrying the boiler down an interior staircase, when a pipe sprung up and injured his hand.
We argued that the pipe used as a ramp did not constitute an enumerated safety device under Labor Law 240(1); and that the stairway (unlike the ladder in Vessio) was a passageway not a tool, under Labor Law 240(1).
Under 241(6), we argued that the Industrial Codes cited are not applicable to support a Labor Law action in that they merely addressed general safety requirements , but were not concrete specifications.
After oral argument, Judge Edwards, reserved decision and later granted the motion.
Lefruy v. Lori-Lane Enterprises, Index No. 20/2014
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