PRELIMINARY STATEMENT. Plaintiffs-appellants Christopher Sanatass ( Sanatass or appellant ) and his

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1 PRELIMINARY STATEMENT Plaintiffs-appellants Christopher Sanatass ( Sanatass or appellant ) and his wife Cynthia Sanatass (collectively appellants ) submit this brief in support of their appeal of right from the March 20, 2007 Order of the Appellate Division, First Department, which, in a 3 to 2 split decision, affirmed the February 22, 2005 Order of the Order of the Supreme Court, New York County (Hon. Saralee Evans, J.S.C.) 1 (R. 1-21; CA-1-28), which, insofar as briefed below and as limited by this appeal, granted the motion of defendants-respondents, Consolidated Investing Company, Inc. and Consolidated Investing Company (collectively Consolidated or respondent ), pursuant to CPLR 3212, for summary judgment and dismissal of appellants cause of 2 action based on Labor Law Sec. 240(1) as a matter of law and denied appellants cross motion for summary judgment in their favor and against Consolidated under 3 Labor Law Sec. 240(1). Although appellants initially appealed by the alternative 1 References to R. are to pages of the Record on Appeal in the Appellate Division that is fully reproduced at pages 1 through 406 of the Record on Appeal in the Court of Appeals. References to CA are to pages of the proceedings in the Court of Appeals that are reproduced after p. 406 of the Record on Appeal in the Court of Appeals. 2 Although the Supreme Court Order states that the remainder of the action shall continue (R. 16), the effect of that Order and the Appellate Division s affirmance of that Order is the dismissal of the plaintiffs-appellants entire case. Accordingly, the Appellate Division Order is a final disposition of this action. 3 Whereas the appeal to the Appellate Division raised the dismissal of appellants claims under Labor Law Secs. 240(1) and 241(6), this appeal to the Court of Appeals is limited to portion of the Appellate Division s March 20, 2007 Order that affirmed the dismissal of 1

2 procedure set forth in Rule of the Court of Appeals Rules of Practice, on September 6, 2007, the Court terminated that procedure and directed the parties to proceed by the normal course of briefing and oral argument. (CA-29) As explained in more detail infra, in its March 20, 2007 Order, the Appellate Division, First Department, erred in affirming the Supreme Court s February 22, 2005 Order, insofar as the lower court granted Consolidated s motion for summary judgment dismissing appellants Labor Law Sec. 240(1) cause of action and denied appellants cross motion for summary judgment on liability on said cause of action. With very few exceptions, Labor Law Sec. 240(1) imposes a nondelegable duty on [a]ll contractors and owners and their agents in the erection, demolition, repairing, altering...of a building or structure to furnish or erect...for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. N.Y. Labor Law Sec. 240(1) (2007). Accordingly, pursuant to the plain language of the statute, all owners, regardless of control, regardless of notice, and regardless of whether the appellants Labor Law Sec. 240(1) cause of action, with regard to which there were two (2) dissenting opinions by Hon. Justices Sweeny and McGuire. (CA-11-12; CA-13-18) 2

3 owner has contracted for or benefitted from the work being done, have a nondelegable duty to provide safe working conditions for workers performing erection, demolition, repair, and alteration work on their premises. Since appellant Christopher Sanatass was a worker engaged in a covered activity under the Labor Law (i.e. alteration of a building owned by Consolidated that consisted of installing an industrial air conditioning system and performing duct work for said system) and since the appellant was injured in a gravity-related accident when a commercial air conditioning unit he and a co-worker were attempting to install in the ceiling fell while being hoisted, Consolidated, as owner, is absolutely liable under Labor Law Sec. 240(1). Contrary to the determinations below, the express language of Labor Law Sec. 240(1), a strict liability provision, does not carve out any exceptions for out-ofpossession owners, pass-through owners, owners of leased premises, owners not exercising day-to-day supervision, or owners without actual notice of the construction, repair, or alteration work being done on their property. The determinations below, which absolve Consolidated for the injuries sustained by the appellant worker in a covered activity on premises owned by Consolidated, conflict with the plain language of Labor Law Sec. 240(1), are irreconcilable with established precedents imposing absolute liability on owners of 3

4 leased premises, and undermine longstanding public policies of statewide importance, as reflected in the statute, which make all owners and their agents absolutely liable for worker and workplace safety on their premises. As owner, Consolidated was certainly not powerless to know what was going on on its premises: It could have had a security guard restrict or monitor access to the entire building and/or could have installed a video surveillance system to observe and keep track of persons entering and exiting its building. Under any scenario, the 1500 to 2500 pound commercial air conditioning unit, ducts, and material lifts that were brought into the building for the work that resulted in Sanatass injury would have been difficult not to notice. The test is not whether Consolidated exercised control over its property but whether it could have exercised such control. Measured by these criteria, Consolidated is certainly an owner within the meaning of Labor Law Sec.240(1) and a proper legal party for the statute s imposition of absolute liability. Under the circumstances, it is the province of the Legislature, not the courts, to limit the liability of all owners and Consolidated, as fee owner, under the statute. Moreover, even assuming, arguendo, that the Appellate Division s interpretation of Labor Law Sec. 240(1) was correct and that, Consolidated, as out-ofpossession owner, would not be liable for Sanatass injuries under the statute unless Sanatass and his employer had been hired to work with the owner s (i.e., 4

5 Consolidated s) express knowledge and consent, Consolidated, as the moving party, failed to carry its burden of proving as a matter of law, with competent, admissible evidence on personal knowledge, that Sanatass and his employer had allegedly been working at the subject premises without Consolidated s permission and in purported violation of the lease. The March 20, 2007 Order should be modified to the extent that it granted Consolidated s motion for summary judgment and dismissal of appellants Labor Law Sec. 240(1) cause of action, the Complaint against Consolidated should be reinstated to the extent it alleges a Labor Law Sec. 240(1) claim against Consolidated, and appellants cross motion for summary judgment against Consolidated on the Labor Law Sec. 240(1) cause of action should be granted; or, alternatively, the March 20, 2007 Order should be modified to the extent that it granted Consolidated s motion for summary judgment and dismissal of appellants Labor Law Sec. 240(1) cause of action, the Complaint against Consolidated should be reinstated to the extent it alleges a Labor Law Sec. 240(1) claim against Consolidated, and this matter should be permitted to proceed to trial on appellants Labor Law Sec. 240(1) cause of action against Consolidated. 5

6 QUESTIONS PRESENTED AND JURISDICTIONAL STATEMENT: This Court has subject matter jurisdiction of the questions raised on this appeal, pursuant to CPLR 5601(a), because there were two (2) dissents in the Appellate Division, First Department, on the legal issues regarding whether the Appellate Division majority was correct in granting the motion of defendant-respondent Consolidated for summary judgment and dismissal of plaintiffs-appellants cause of action under Labor Law Sec. 240(1) and in denying plaintiffs- cross motion for partial summary judgment on liability on that cause of action on grounds that the air conditioning installation work on the leased premises was allegedly performed without the consent of Consolidated, the owner/lessor, and in violation of the lease, which required prior written approval for any installation. (CA-12) The Appellate Division s March 20, 2007 Order constitutes a final disposition of the entire case and of the merits of the Labor Law Sec. 240(1) cause of action in particular. (CA-11-12) The following questions are raised by this appeal: 1. Did the Appellate Division, First Department, err in granting Consolidated s motion for summary judgment and dismissal of the Labor Law Sec. 240(1) cause of action as Consolidated was the owner of the subject premises, Sanatass was engaged in a covered activity (i.e., alteration of a building or 6

7 structure) at the time of the accident, and the 7 ½ ton commercial air conditioning unit that struck and injured Sanatass constituted a falling object under the statute? This question was raised and preserved below at: R , 29-31, , , , 351, , , , CA-17; at pp , of appellants main brief in the Appellate Division; and at pp of appellants reply brief in the Appellate Division. 2. Did the Appellate Division, First Department, err in disregarding the plain meaning of all owners in Labor Law Sec. 240(1)(a), a strict liability statute, and in carving out a judicial exception for out-of-possession owners, owners of leased premises, or owners without actual notice of the construction work being done on their property? This question was raised and preserved below at: R , , , , , , CA-12-16; at pp of appellants main brief in the Appellate Division; and at pp of appellants reply brief in the Appellate Division. 3. Did the Appellate Division, First Department, err in interpreting owner liability under Labor Law Sec. 240(1)(a) to exclude out-of-possession title owners, such as Consolidated, when the on-premises activity that injured the plaintiff worker was purportedly being performed without the owner s knowledge or consent and in 7

8 violation of the lease? This question was raised and preserved below at: R , , , , , , CA-12-16; at pp of appellants main brief in the Appellate Division; and at pp of appellants reply brief in the Appellate Division. 4. Do the judicial exclusions that the Appellate Division reads into the meaning of owner under Labor Law Sec. 240(1)(a) conflict with the plain language, legislative history, and purpose of the statute? This question was raised and preserved below at: R , , , , , , , CA-12-16; at pp of appellants main brief in the Appellate Division; and at pp of appellants reply brief in the Appellate Division. 5. Did the Appellate Division err in granting Consolidated s motion for summary judgment and dismissal of the Labor Law Sec. 240(1) cause of action when Consolidated, as the moving party, failed to carry its primary burden of proving, as a matter of law, with competent, admissible evidence on personal knowledge, that Sanatass and his employer had allegedly been working at the subject premises without Consolidated s permission and in purported violation of the lease? This question was raised and preserved below at: R , , , 8

9 , , 332, , , , CA-12-16; at pp of appellants main brief in the Appellate Division; and at pp of appellants reply brief in the Appellate Division. * * * Consolidated s contention in its June 5, 2007 letter submission to this Court that appellants arguments with respect to the plain meaning of Labor Law Sec. 240(1) and the legislative history behind this statute [Labor Law Sec. 240(1)] were never presented to either the Supreme Court or the Appellate Division and have not been properly preserved for appeal to this Court (CA-58-59) is completely lacking in merit for two reasons: First, appellants discussed the legislative history and plain st nd language of the statute at pp. 48 (i.e., quotation from Coleman) and 54 (1 and 2 lines at top of page) of their main brief in the Appellate Division. In addition, appellants argued the express or plain language of the statute at pp. 12 and 18 of their reply brief in the Appellate Division. Second, contrary to respondent s representations, it is well settled that an issue which was not raised before the lower court is reviewable by the appellate court if the question presented is one of law which appeared upon the face of the record and which could not have been avoided by [the respondent] if brought to [its] attention at the proper juncture [citations omitted]. Block v. Magee, 146 A.D.2d 730, 732 (2d Dept. 1989). At bar, appellants 9

10 briefs to the Appellate Division and to this Court allege no new facts, but, rather, raises pure legal arguments that could not have been avoided by the respondent if they had been raised in the lower courts. Block v. Magee, 146 A.D.2d at See also, Rivera v. Smith, 63 N.Y.2d 501, 516 n.5 (1984); American Sugar Refining Co. Of N.Y. v. Waterfront Commission of N.Y. Harbor, 55 N.Y.2d 11, (1982), app. dism., 458 U.S (1982); Matter of Wang, 5 A.D.3d 788 (2d Dept. 2004). Thus, contrary to Consolidated s assertions, all of the legal arguments raised by the appellants in the Appellate Division and on this appeal may be considered and reviewed by this Court as a matter of law. 10

11 STATEMENT OF FACTS This is a personal injury action under Labor Law Sec. 240(1) for the serious injuries sustained by appellant Sanatass, a lead mechanic employed by JM Haley Corporation ( JM Haley ), a contractor, on January 17, 2000 at approximately 6:00 p.m., while he was engaged in construction, renovation, and alteration work on the 11th floor of a commercial building located at 423 West 55th Street, in the County and State of New York ( the subject premises ). (R , 145, , 353) Although the 11th floor ( the demised premises or the construction site ) was purportedly leased to a third party and the lease was subsequently assigned, the building and construction site were owned, operated, maintained, controlled, managed, and inspected by Consolidated. (R , 62, 77, 111, 114, , ) Pursuant to the express terms of the lease, Consolidated retained the right to reenter, inspect, and/or repair the demised premises. (See, Articles 4, 13, and 20 of the Lease at R ) In addition, pursuant to the rider to the lease, any air conditioning unit or system existing or to be installed by the Tenant at the demised premises would be or remain the property of Consolidated, the Landlord. (See, Article 62 of Rider at R. 104) On the day of the accident, Sanatass employer, JM Haley, was engaged in an extensive construction project at the demised premises which involved installing air 11

12 conditioning ducts into the building, drilling holes into the ceiling, installing threaded rods into the ceiling to hold a 1500 to 2500 pound commercial air conditioning unit with a 7 ½ ton unit cooling capacity, and using two portable manual material lifts (cable jacks) to secure, hoist, and install the air conditioning unit. (R , , , ) The accident occurred when the air conditioning unit had been raised about 6 or 7 feet off the ground, and the lift on Sanatass side suddenly gave way, causing the unit to fall about four (4) feet, come down on the worker, and knock him to the ground. (R , , , 227, ) Sanatass was not provided with proper hoists or other safety devices to protect him in the event of such an occurrence. (R. 351, 353) PROCEDURAL HISTORY Commencement Of The Action Appellants instituted this action by filing and serving a Summons and Verified Complaint on or about July 19, (R ) A Supplemental Summon and Amended Verified Complaint were filed and served on or about January 18, (R ) The Amended Complaint alleged causes of action under Labor Law Sec. 240, Labor Law Sec. 241, the Industrial Code, Labor Law Sec. 200, and common law 12

13 4 negligence. (R ) Issue was joined on or about March 18, 2002 with the filing and service of Consolidated s Answer and Discovery Demands. (R ) Consolidated s Motion For Summary Judgment, Support And Opposition Thereto, And Appellants Cross-Motion For Summary Judgment On or about July 14, 2004, Consolidated made a motion for summary judgment and dismissal of the Complaint. (R ) On or about September 2, 2004, appellants made a cross motion, pursuant to CPLR 3212, for summary judgment against Consolidated under Labor Law Sec. 240(1) and 241(6), as supported by 22 NYCRR 23-61(b). The Supreme Court s February 22, 2005 Order In its February 22, 2005 Order, the Supreme Court, in granting Consolidated s motion for summary judgment dismissing the Complaint under Labor Law Sec. 240(1) and denying appellants cross motion for summary judgment in their favor under the statute (R. 1-21), determined, inter alia, that Sanatass was not an employee for purposes of Labor Law Sec. 240(1) because he was hired to work without defendants knowledge and in direct violation of the lease which provides that all alterations of any kind require the prior written approval of the landlord. (R. 15) The Supreme Court reasoned there was no nexus between Sanatass and Consolidated, 4 Plaintiffs subsequently conceded that they could not establish their causes of action under Labor Law Sec. 200 and common-law negligence. (R. 332) 13

14 owner of the subject premises, and that [u]nder the circumstances, defendants cannot be charged with the duty of providing proper equipment or safe working conditions for workers of whom they are unaware. (R ) Appellants Appeal To Appellate Division; Appellate Division s March 20, 2007 Order Consolidated served a copy of the Supreme Court s February 22, 2005 Order with Notice of Entry on or about March 24, ( R. 9-10) Appellants served and filed a timely and proper Notice of Appeal from that Order to the Appellate Division, First Department, on or about April 12, ( R. 1-21) In an Order dated March 20, 2007, which reflected a 3 to 2 split decision, a majority of the Appellate Division justices on the panel affirmed the Supreme Court s February 28, 2005 Order, relying on the decisions in Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 51 (2004), Whelen v. Warwick Val. Civic & Social Club, 47 st N.Y.2d 970, 971 (1979), Ceballos v. Kaufman, 249 A.D.2d 40 (1 Dept. 1998), and st Brown v. Christopher St. Owners Corp., 211 A.D.2d 441, 442 (1 Dept. 1995), affd other grnds, 87 N.Y.2d 938 (1996). (CA-11-12) The Appellate Division held, inter alia, that [t]he motion court properly found that Consolidated is not liable to plaintiff pursuant to the relevant sections of the Labor Law because the air conditioning installation was performed without its consent and in violation of the lease, which 14

15 required prior written approval for any installations... (CA-12) The two dissenting justices disagreed with the Appellate Division majority s interpretation of owner liability under Labor Law Sec. 240(1). (CA-13-18) They noted that the plain language of the statute imposes liability on all owners and that the court should decline to exempt [Consolidated] which is in fact the owner from the plain word and reach of the statute, leaving that for the Legislature if it so chooses... Coleman v. City of New York, 91 N.Y.2d 821, 823 (1997) [citations omitted]. (CA-14, CA-16) Citing the Court of Appeals decisions in Coleman v. City of New York, supra, and Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, (1993), and Appellate Division decisions in Mejia v. Moriello, 286 A.D.2d 667 (2d Dept. 2001), th Seemueuller v. County of Erie, 202 A.D.2d 1052 (4 Dept. 1994), and Celestine v. City of New York, 86 A.D.2d 592 (2d Dept. 1982), affd 59 N.Y.2d 938 (1983), the dissent stated that Labor Law Sec. 240(1) imposes a nondelegable duty on owners to provide a safe place to work, that said duty does not depend upon control, and that liability under the statute rests upon the fact of ownership and whether [the owner] had contracted for the work or benefitted from it are legally irrelevant. Gordon v. Eastern Ry. Supply, 82 N.Y.2d at 560. (CA-14) The dissenting justices opined that, to the extent the Appellate Division, First Department s recent decision in Ahmed v. 15

16 Momart Discount Store, Ltd., 31 AD3d 307 (2006), is to the contrary and supports the majority s determination, they believe it was incorrectly decided. (CA-16, n.2) The dissent found the decision in Abbatiello v. Lancaster Studio Assoc., 3 N.Y.2d at 46, in which the Court of Appeals held that an out-of-possession owner was not liable to a cable television worker injured on the owner s premises while taking care of the complaint of a tenant, to be narrow and inapplicable to the situation at bar. (CA-15-16) In Abbatiello, the Court determined that an out-ofpossession owner could not be considered an owner under Labor Law Sec. 240(1) because, pursuant to article 11 of the Public Service law, the owner was mandated to 5 provide the cable worker with access to the premises. (CA-15) The dissent explained that: Unlike the owner in Abbatiello, Consolidated was not required by law to provide Sanatass with access to the premises. Nor, of course, was Consolidated legally powerless to determine what work was performed on the premises. To the contrary, the lessees were required to obtain Consolidated s consent for any changes in or to the demised premises of any nature. Although the lessees failure to obtain Consolidated s consent may bear on Consolidated s rights under the lease to a defense and indemnification from the lessees, neither that failure nor Consolidated s lack of knowledge of the work are relevant to Consolidated s status as owner for purposes of Labor Law Sec. 240(1)...[citation omitted]. 5 The dissent asserted that the Appellate Division, First Department s recent decision in st Campoverde v. Liberty, LLC, 37 AD3d 275 (1 Dept. 2007), illustrates another unusual set of facts that is limited to the Abbatiello rationale. 16

17 (CA-15) The dissent pointed out that in Abbatieillo, the Court of Appeals made is clear that the common element to all cases imposing Labor Law Sec. 240(1) liability on out-of-possession owners...is some nexus between the owner and the worker... 3 N.Y.3d at 51. The dissenting justices found that [t]he very nexus recognized in Abbatiello to be sufficient to impose Labor Law Sec. 240(1) liability a lease between the owner-lessor and the lessee who hired the plaintiff is the nexus present between Consolidated and Sanatass..., citing Abbatiello, 3 N.Y.3d at 51; Gordon, supra. (CA-16) The dissent concluded that they would modify the [Supreme Court] order to the extent of denying that aspect of the motion of Consolidated which sought summary judgment dismissing plaintiffs cause of action under Labor Law Sec. 240(1) and granting that aspect of plaintiffs cross motion which sought partial summary judgment on the issue of liability on that cause of action... (CA-18) Appellants Appeal To The Court Of Appeals On or about March 23, 2007, Consolidated served appellants, by regular mail, with a copy of the March 20, 2007 Order of the Appellate Division, First Department. (CA-10-18) Thereafter, on or about April 13, 2007, appellants served and filed a timely Notice of Appeal to the Court of Appeals from that portion of the March 20, 2007 Order of the Appellate Division, First Department, that affirmed the Supreme 17

18 Court s granting of summary judgment in Consolidated s favor on the Labor Law Sec. 240(1) claim and that denied appellants cross motion which sought summary judgment on the issue of liability on that cause of action. (CA-7-20) On April 20, 2007, appellants served and filed the Preliminary Appeal Statement, as required by section of the Rules of the Court of Appeals. (CA-2-6) Appellants requested that the appeal be considered for resolution pursuant to Sec of the Rules of the Court of Appeals (Alternative Procedure for Selected Appeals). (CA-5) On or about May 17, 2007, appellants submitted written comments and arguments in support of their position on the merits of the appeal. (CA-31-52) Consolidated submitted its written response to appellants submission on or about June 5, (CA-53-62) In a letter dated September 6, 2007, the Court notified the parties that it had terminated its review of this appeal by the alternative procedure and that the appeal would now proceed in the normal course of briefing and oral argument pursuant to the Court s scheduling order set forth therein. (CA-29-30) 18

19 ARGUMENT POINT I THE APPELLATE DIVISION ERRED IN GRANTING CONSOLIDATED S MOTION FOR SUMMARY JUDGMENT AND DISMISSAL OF THE LABOR LAW SEC. 240(1) CAUSE OF ACTION AND IN DENYING APPELLANTS CROSS MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW SEC. 240(1) CAUSE OF ACTION A. Consolidated, As Owner Of The Subject Premises, Is Absolutely Liable Under Labor Law Sec. 240(1) For The Injuries Sustained By Sanatass Because Sanatass Was Engaged In Alteration Work, A Covered Activity, And The 7 ½ Ton Commercial Air Conditioning Unit That Struck Him Constituted A Falling Object Under The Statute. The purpose of Labor Law Sec. 240(1) is to protect workers by placing the ultimate responsibility for workplace safety on those most able to bear that obligation, owners and contractors, instead of on the workers themselves. Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d at 559; Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 500 (1993). See also, 1969 N.Y. Legis. Ann. at 407. Accordingly, Sec. 240(1) imposes absolute liability upon owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury [citation omitted]. Gordon v. Eastern Railway Supply, Inc., 85 N.Y.2d at 559. [W]here an owner or contractor fails to provide any safety devices, liability is mandated by the statute without regard to external considerations such as rules and regulations, contracts or custom and usage. Zimmer v. Chemung County Performing Arts, Inc., 19

20 65 N.Y.2d 513, 523 (1985), recons. denied, 65 N.Y.2d 1054 (1985) [emphasis added]. See also, Sherman v. Piotrowski Builders, Inc., 229 A.D.2d 959 (4th Dept. 1996); D Amico v. Manufacturers Hanover Trust Co., 177 A.D.2d 441 (1st Dept. 1991) The duties imposed by Labor Law Sec. 240(1) are nondelegable, and an owner or contractor who breaches that duty is absolutely liable, regardless of whether or not it actually exercised supervision or control over the work. Blake v. Neighborhood Housing Services of NYC, 1 N.Y.3d 280, 287 (2003); Gordon v. Eastern Railway Supply, Inc., 55 N.Y.2d at ; Ross v. Curtis-Palmer Hydro-Electric Co, 81 N.Y.2d at 500. See also, Haimes v. New York Tel. Co., 46 N.Y.2d 132, (1978); Crespo v. Triad, Inc., 294 A.D.2d 145, 147 (1st Dept. 2002); Sergio v. Benjolo N.V., 168 A.D.2d 235 (1st Dept. 1990). Moreover, because the statute is intended to protect workers from injury, this Court has held that it is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed [citations omitted]. Gordon v. Eastern Railway Supply, Inc., 55 N.Y.2d at 559. See also, Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d at Labor Law Sec. 240(1) applies in this case because Sanatass was engaged in the installation of a commercial air conditioning system and related duct work, i.e., 20

21 alteration of a building or structure, which is a covered activity under the statute. (R , 145, , 353) See, e.g., Dankulich v. Felchar Mfg. Corp., 247 A.D.2d 660 (3d Dept. 1998) (Plaintiff s installation of air conditioning equipment was an alteration within the meaning of the statute that entitled the plaintiff to partial summary judgment on liability under 240(1)); Perez v. NYC Industrial Dev. Agency, 223 A.D.2d 628, 629 (2d Dept. 1996) (Plaintiff worker s task of installing an air conditioner on the roof of a building falls under the protection of Labor Law Sec ); Savigny v. Marrano/Marc Equity Corp., 221 A.D.2d 942 (4th Dept. 1995) (Plaintiff worker, who fell from a ladder while installing duct work at a job site where no other safety devices were provided, was granted summary judgment against the owner of the property under Labor Law Sec. 240(1).). See also, Montalvo v. J. Petrocelli Corp., 8 A.D.3d 173 (1st Dept. 2004) (Plaintiff worker, who was injured while installing new ductwork for school s heating and air conditioning system, was awarded partial summary judgment on liability under Labor Law 240(1)); Cordero v. Kaiser Organization, Inc., 288 A.D.2d 424 (2d Dept. 2001) (Plaintiff worker, who was injured while installing heating and air conditioning units, was granted partial summary judgment on liability under 240(1)). The accident occurred when the material lift by which the 7 ½ ton commercial air conditioning unit had been hoisted up about 6 to 7 feet fell gave way, causing the 21

22 unit to strike Sanatass and knock him down. (R. 196, , , , 227, ) According to Sanatass, the falling 1500 to 2500 pound unit almost crushed and killed him. (R. 201, , 227, 238) Hence, under the circumstances, the unit constituted a falling object that fell from an elevated differential or height because of the absence or inadequacy of a safety device set forth in the statute. It, therefore, satisfied the criteria set by this Court for a 240(1) cause of action. Cf., Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 (2001). Furthermore, it is uncontroverted that Consolidated was the owner of the premises where the accident took place. (R , 62, 77, 111, 114, , 329, ) Hence, pursuant to Labor Law Sec. 240(1), Consolidated should be absolutely liable for the injuries sustained by Sanatass. B. The Plain Language Of Labor Law Sec. 240(1), Which Is The Best Evidence Of Legislative Intent, Includes All Owners, With Certain Narrow Exceptions Not Applicable At Bar, Within The Purview Of The Statute. Labor Law Sec. 240(1) expressly provides, in pertinent part: All contractors and owners and their agents...in the erection, demolition, repairing [or] altering...of a building or structure shall furnish or...cause to be furnished...for the performance of such labor... ladders...which shall be so constructed, placed and operated as to give proper protection to a person so employed. N.Y. CLS Labor Law Sec. 240(1) (2007) [emphasis added]. Since this appeal 22

23 presents a question of statutory interpretation, the text of the statute is the best evidence of legislative intent... Malta Town Centre I, Ltd. v. Town of Malta Bd. of Assessment Review, 3 N.Y.3d 563,568 (2004), citing Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577 (1998). Here, the plain language unambiguously expresses the Legislature s intent to include all owners and their agents, with certain noted exceptions, within the purview of the statute. Whereas the statute explicitly excepts certain owners of one and two-family dwellings, it has no similar exemptions for other title owners, such as Consolidated. Had the Legislature wished to exclude out-of-possession owners, pass-through owners, owners who lack notice, supervision, or control over the work, or owners who do not consent to work being done on leased premises when such consent is required by lease, contract or other agreement, the Legislature could have so provided through appropriate wording. It did not do so. Therefore, the plain language of the statute, which encompasses all owners, is alone determinative (Matter of Excellus Health Plan, Inc. v. Serio, 2 N.Y.3d 166, 171 (2004)) and must be construed to include commercial title owners, such as Consolidated, within its ambit of absolute liability. Cf., Polan v. State of N,.Y. Ins. Dept., 3 N.Y.3d 54, 58 (2004) ( As a general rule, a statute s plain language is dispositive.... ). The statute must be read and given effect as it is written by the Legislature, not as the court may 23

24 think it should or would have written if the Legislature had envisaged all problems and complications which might arise. Parochial Bus Systems, Inc. v. Bd. of Ed., 60 N.Y.2d 539, (1983). C. The Legislative History Supports The Express, Plain Meaning Of All Owners In Labor Law Sec. 240(1)(a). The legislative history supports the literal interpretation of all owners in Labor Law Sec. 240(1). While the plain language of a statute is itself dispositive (see, Matter of Washington Post Co. v. New York State Ins. Dept, 61 N.Y.2d 557, 565 (1984)), the legislative history of an enactment may also be relevant and is not to be ignored, even if words be clear... Riley v. County of Broome, 95 N.Y.2d 455, 463 (2000), citing McKinney s Cons. Laws of N.Y., Book 1, Statutes Sec. 124, at 252. Here the history of Labor Law Sec. 240(1) shows a legislative intent to make the liability of owners as broad as that of contractors. To summarize, the current statute, as reflected in its common title, is a scaffold law, L. 1885, ch The original legislation applied only to a person employing or directing another. Blake v. Neighborhood Housing Services, N.Y. City, 1 N.Y.3d at 285, quoting L. 1885, ch The 1969 amendments replaced [a] person employing or directing another to perform labor of any kind with [a]ll contractors and owners and their agents N.Y. Senate Bill 2091-A, Sec. 1. Although the 24

25 defense bar and insurance industry trade groups vigorously opposed the amendment s extension of coverage to owners on grounds that, inter alia, it would make the owner and builder absolutely liable without qualification for every accident which occurs... (Letter from William F. Larkin, Defense Ass n of N.Y., May 12, 1969, at 1, in Bill Jacket, L. 1969, ch. 1108) and an owner or general contractor would become liable for the improper erection of a scaffold, even though he had no control over the operation involved (Letter from Joseph J. Rose, N.Y. State Mut. Ins. Ass n, May 14, 1969, at 1, in Bill Jacket, id.), the amendment s expansive language was adopted. Indeed, the legislative history of its most recent enactment (L 1969, ch 1108) and its consistent interpretation by the courts make clear that the targets of this statutory imposition of a nondelegable duty (to maintain safe working conditions and insure financial responsibility for any losses suffered) are those who have the power to enforce safety standards and choose responsible subcontractors. Nowak v. Smith rd & Mahoney, P.C., 110 A.D.2d 288, 290 (3 Dept. 1985), citing Memorandum of Senator Calandre and Assemblyman Amann, 1969 N.Y. Legis Ann., at 407). The 1980 amendment, unlike the 1969 amendments, only concerned the liability of owners. It retained the 1969 language covering all...owners, but enacted an exception for small homeowners as follows: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not 25

26 direct or control the work... engaged in construction work shall provide workers with suitable safety devices N.Y. Senate Bill S 8203-A Sec. 1[1], Bill Jacket, L 1980, ch 670 [underscoring indicates new language]. In a more detailed Recommendation to the Legislature, the Law Revision Commission stated that it believes that while the rule of strict liability has a salutary effect in promoting responsibility among those engaged in the business of construction and repair, and to owners of buildings other than one and two family dwellings [emphasis added], it should not apply to owners of one and two family homes who are not in a position to know about, or provide for the responsibilities of absolute liability. Recommendation of Law Revision Comm n, Memo. of Law Revision Comm n, at 1-2, in Bill Jacket, L 1980, ch The legislative history of the 1980 amendments evinces an intent to exclude one and two-family homeowners from the general rule of owner liability because they were unlikely to be aware of their liability under Section 240 and, consequently, would be unlikely to insure against it, and because, for such owners, strict liability would result in an undue hardship. Their direction and control of the work remained as an exception to the new exemption in their favor. See, Van Amerogen v. Donnini, 78 N.Y.2d 880, 882 (1991). However, no such exemption operated in favor of what the Law Revision Commission called those engaged in the business of 26

27 construction and repair, and to owners of buildings other than one and two family dwellings. Moreover, the legislative history does not distinguish between owners in possession or owners out-of-possession. Nor is notice of a safety hazard discussed except, in 1969, by business/defense interests nostalgic for the common law liability rules which served those interests so well, but which have been increasingly abrogated for over a century by the original scaffold law and subsequent amendments. Hence, the legislative history of Labor Law Sec. 240(1) explicates the legislative intention to make all owners and their agents, except for certain owners of one and two family houses, absolutely liable for statutory violations proximately resulting in worker injuries, to the same extent as general contractors and their agents. D. The Appellate Division s Restrictive Interpretation of Owner Liability Under Labor Law Sec. 240(1)(a) Sharply Conflicts With The Plain Language, Legislative History, And Strong Public Purpose In Protecting Worker Safety, As Pronounced By This Court, The First Department Itself, And Other Courts. Contrary to the determinations below, the fact that the 11th floor where the construction work was being performed was purportedly leased to a third party should not absolve Consolidated, the owner, from absolute liability under Labor Law Sec. 240(1). The building and construction site were owned, operated, maintained, controlled, managed, and inspected by Consolidated, and, under Articles 4, 13, and 20 of the lease, Consolidated retained the right to re-enter, inspect, and/or repair the 27

28 demised premises. (R , 62, 77-79, 111, 114, , ) Therefore, whether in possession or out-of-possession, Consolidated, as fee owner, should be absolutely liable for any injuries sustained by the appellant worker that proximately resulted from a violation of the statute. See, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 348 (1998); see also, Wischnie v. Dorsch, 296 N.Y.. 257, 262 (1947) ( As to the injured plaintiff it makes no difference whether the owner is in or out of possession or whether the tenant is in sole and exclusive possession and control; that is an expression of sound public policy approved by the court. ). The Appellate Division s judicially imposed limits on owner liability under Labor Law Sec. 240(1) sharply conflict with the statute s plain language, legislative history, and strong public purpose in protecting worker safety, as pronounced by this Court. In Celestine v. City of N.Y., 86 A.D.2d at 592, 59 N.Y.2d at 938, a leading case on owner liability under Labor Law Sec. 241(6), defendant Long Island Railroad Company, owner of the property where the plaintiff worker was injured, argued that it should not be considered an owner under the statute because the accident location was subject to an easement it had granted to codefendants the City of New York and the New York City Transit Authority. The Appellate Division, Second Department, affirmed the denial of the Railroad s motion for summary judgment, and this Court further affirmed. The Courts concluded that, notwithstanding the easement, the 28

29 Railroad remained the owner of the fee; that the purpose of the statute was to impose a nondelegable duty upon owners and general contractors to provide reasonable and adequate protection and safety to persons working at the job site, regardless of the absence of control, supervision, or direction of the work; that the statute made no distinctions based on encumbrances of any sort of ownership; and that liabilities arising out of the statutory duties may not be escaped by delegation. 86 A.D.2d at 593; 59 N.Y.2d at 938. In Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d at 555, this Court extended the Celestine rationale for owner liability to Labor Law Sec. 240(1) and rejected the argument, made by Consolidated below and accepted by the Supreme Court and Appellate Division majority, that a fee owner that leases the property where the accident took place and that did not contract for the work performed cannot be held liable as an owner under the statute. This Court explained: Section 240(1) of the Labor Law, like section 241(6), provides that the statutory duty is nondelegable. It does not require that the owner exercise supervision or control over the worksite before liability attaches...thus, the reasoning adopted in Celestine is controlling here. Liability rests upon the fact of ownership and whether Eastern had contracted for the work or benefitted from it are legally irrelevant. * * * Given the legislative history of section 240 and our affirmance in Celestine, we hold that when the Legislature imposed the 29

30 82 N.Y.2d at 560. duties of section 240(1) on [a]ll...owners it intended to include owners in fee even though the property might be leased to another. Three years later, in Adimey v. Erie County Indus. Dev. Agency, 89 N.Y.2d 836 (1996), this Court modified the Appellate Division, Fourth Department, Order that held that the defendant agency, which retained title to the subject property allegedly only for tax benefits, was not an owner within the meaning of Labor Law Secs. 240(1) or 241(6). The Court of Appeals adopted the reasoning of the Fourth Department s dissent: The majority s holding negates the clear wording of Labor Law Sec. 240(1), which states that an owner is absolutely liable for damages for injuries arising out of a violation of the statute...if an exception is to be made for pass-through owners like defendant, then such a change must be made by the Legislature, and that defendant as a public entity that owns the land, accepts the advantages and disadvantages with that ownership. th Adimey v. Erie County Indus. Dev. Agency, 226 A.D.2d 1053, 1054 (4 Dept.), (Lawton and Davis, JJ., dissenting in part) (citations omitted), mod. for reasons stated in the dissent, 89 N.Y.2d at The following year, in Coleman v. City of New York, 91 N.Y.2d at 821, the Court of Appeals, noting the narrow statutory exceptions for owners of one and two- 30

31 family dwellings, reiterated its approval of the Celestine and Gordon precedents and the broad, bright-line rule of fee owner liability under the plain language of the statute: 91 N.Y.2d at The Legislature has, in the past, carved out exceptions from liability for certain owners (see, e.g., L 1980, ch 670 [creating ownership exception for owners of one-and-two-family dwellings]) but it has not created a similar exception for the City. We therefore decline to exempt the City -- which is in fact the owner--from the plain word and reach of the statute, leaving that for the Legislature if it so chooses... Many Appellate Division decisions, including those in the First Department, have followed the Court of Appeals bright line rule imposing strict liability on fee owners under Labor Law Secs. 240(1) (and 241(6)) without regard to whether the property was leased, whether the owner contracted for the work or benefitted from the work, or whether the owner supervised or controlled the work site. For example, in Crawford v. Williams, 198 A.D.2d 48 (1st Dept. 1993), lv. denied, 83 N.Y.2d 751 (1994), the First Department, citing Celestine, rejected the contention that Labor Law Sec. 241(6), which imposes a nondelegable duty on owners of work sites to provide a safe place of employment, does not apply to out-of-possession owners who exercise no control or supervision over the work. 198 A.D.2d at 48. See also, Giaacomazzo v. Exxon Corporation, 185 A.D.2d 145, 146 (1st Dept. 1992) (citing Celestine and holding that Exxon, the fee owner, cannot escape liability by demonstrating that it 31

32 delegated the responsibility for its duties under section 241(6) to its lessee... ). A decade later, in Spagnuolo v. Port Authority of New York and New Jersey, 8 st A.D.3d 64 (1 Dept. 2004), the First Department flatly rejected the argument of the defendant Port Authority that, notwithstanding its status as fee-owner of the work site, the defendant should not be held liable for the injuries sustained by the plaintiff worker, an employee of a subcontractor hired to assist in the recovery and clean-up efforts at the World Trade Center following the September 11, 2001 terrorist attack, because the Port Authority had been divested by the City of possession and control of the site following the attac, and did not undertake, authorize, supervise or control any debris-removal work at Ground Zero during the post-september 11 period. 8 A.D.3d at 64. Citing Gordon, the Appellate Division explained: However, in its capacity as fee owner of the World Trade Center, the Port Authority could still be held liable for plaintiff s injuries under section 240(1), even if it did not possess the site at the time of plaintiff s accident and may not have actually contracted for the demolition and debris-removal work. Liability under section 240(1) rests on the fact of ownership, and whether the owner has contracted for the work or benefitted from it is legally irrelevant... 8 A.D.3d at 64 (citations omitted). st Even more recently, in Bell v. Bengomo Realty, Inc., 36 A.D.3d 479 (1 Dept. 2007), the Appellate Division, First Department, citing Coleman and Spagnuolo, 32

33 affirmed the Supreme Court s grant of summary judgment on liability in favor of the plaintiff worker against Bengomo Realty, the owner of the property, even though, at the time of the accident, the plaintiff had been employed as an electrician by Empire Erectors, a nonparty, who had been contracted by the lessee, Willow Media, to erect two billboards in a parking lot owned by Bengomo Realty. The defendant owner s absolute liability under Labor Law Sec. 240(1) was upheld notwithstanding that the property had been leased to Willow Media and there was no direct contractual privity between the owner, Bengomo, and plaintiff s employer, Empire Erectors. Likewise, in Peritore v. Don-Alan Realty Associates, Inc., 18 AD3d 846, 847 (2d Dept. 2005), the Appellate Division, Second Department, citing Gordon, held that [s]ince liability under Labor Law Sec. 240(1) rests upon the fact of ownership, issues as to whether the owner has contracted for the work or benefitted from it are legally irrelevant... See also, Pineda v. 79 Barrow Street Owners Corp., 297 A.D.2d 634, 636 (2d Dept. 2002) ; Otero v. Cablevision, 297 A.D.2d 632, 634 (2d Dept. 2002); Mejia v. Moriello, 286 A.D.2d at 667. The Appellate Divisions in the Third and Fourth Departments have similarly held that fee owners are absolutely liable under Labor Law Secs. 240(1) (and 241(6)) without regard to whether the property was leased, whether the owner contracted for the work or benefitted from the work, or whether the owner supervised or controlled 33

34 th the work site. See, Silk v. Turk, 294 A.D.2d 896 (4 Dept. 2002) ( Although defendant exercised no control over the reconstruction of the bridge, her [l]iability rests upon the fact of ownership and whether [she] had contracted for the work or benefitted from it are legally irrelevant... ); Hilbert v. Sahlen Packing Co., Inc., 267 th A.D.2d 940 (4 Dept. 1999) ( We conclude as a matter of law that Sahlen, as the title owner of the property, is an owner within the meaning of Labor Law Sec. 240(1)... ); Nephew v. Barcomb, 260 A.D.2d 821, 822 (3d Dept. 1999) ( It is uncontradicted that defendants were the record owners of the property and Labor Law Sec. 240(1) makes no distinction between in-possession and out-of-possession owners...the fact that defendants had relinquished possession of the property in favor of BFCI did not extinguish their status as fee owners of the property... ). See also, Tronolone v. th Praxair, Inc., 22 AD3d 1031, 1032 (4 Dept. 2005); Enge v. Ontario County Airport th Management Co., LLC, 26 AD3d 896, (4 Dept. 2006); LoVerde v. 8 Prince th Street Assoc., LLC, 35 A.D.3d 1224, 1225 (4 Dept. 2006); Houde v. Barton, 202 A.D.2d 890, 893 (3rd Dept. 1994), app. dismissed, 84 N.Y.2d 977 (1994); Seemueller v. County of Erie, 202 A.D.2d at 1052; Kerr v. Rochester Gas & Electric Corp., 113 A.D.2d 412, 416 (4th Dept. 1985). In the instant case, Consolidated, like the property owners in Celestine, Gordon, Adimey, and Coleman, was the undisputed fee owner of the construction site. Whereas 34

35 the Legislature enacted specific exceptions under Labor Law Secs. 240(1) and 241(6) for certain owners of one and two-family dwellings, it did not provide any exemptions for, e.g., out-of-possession owners, pass-through owners, owners who do not contract for or directly benefit from the work being done, owners without notice of or who do not consent to the work being done, or owners who do not supervise or control the manner in which the work is performed. Nor does the Labor Law permit the courts to except certain owners on a case-by-case basis. As one court reasoned: The subject statutes do not exempt all out-ofpossession owner, or those that do not control the manner in which the work is performed, or those not in privity with those who perform the work. Neither does the Labor Law empower the courts to exempt certain owners due to case-specific circumstances. Rather, the Legislature chose to write the Labor Law to provide for status-based liability, imposing vicarious responsibility on owners for the acts of general or subcontractors. It did so in order to assure the presence of a financially responsible party for the protection of the injured worker. The Legislature, not the Judiciary, is the appropriate branch of government to decide whether and under what circumstances an exception should be made to the owner-liability provisions of the Labor Law. Graybill v. The City of New York, 2003 N.Y. Slip Op (U), 2003 WL *3 (Sup. Ct., N.Y. Co. 2003). See also, Kerr v. Rochester Gas & Electric Corp., 113 A.D.2d at 416. Furthermore, in light of the foregoing Court of Appeals and Appellate Division 35