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Decided on March 24, 2005
Supreme Court, Tompkins County
Michael Kirk, Plaintiff,
against
Outokumpu American Brass, Inc., Defendant. OUTOKUMPU
AMERICAN BRASS, INC., Third Party Plaintiff, -vs - HOHL
INDUSTRIAL SERVICES, INC. and HOHL INDUSTRIAL SALES
CO., INC., Third Party Defendants. HOHL INDUSTRIAL SERVICES,
INC. And HOHL INDUSTRIAL SALES CO., INC., Fourth Party
Plaintiffs, HOWMEDICA, INC./PFIZER HOSPITAL PRODUCTS
GROUP, and MARK J. ANDERS, M.D., Fourth Party Defendants.







2000-0286

Mark A. Solomon, Esq.
Eustace & Marquez
Attorneys for Defendant/Third-Party Plaintiff
Outokumpu American Brass, Inc.

1311 Mamaroneck Avenue White Plains, NY 10605 Denis J. Bastible, Esq. Cellino & Barnes Attorneys for Plaintiff 16 West Main Street - Suite 147 Rochester, NY 14614 Allison B. Neidoff, Esq. Gibbons, DelDeo, Dolan, Griffinger & Vecchione Attorneys for Fourth Party Defendant Howmedica, Inc./Pfizer Hospital Products Group One Pennsylvania Plaza - 37th Floor New York, NY 10119-3701 James Cosgriff, Esq. Petrone & Petrone Attorneys for Third Party Defendants/Fourth Party Plaintiffs Hohl Industrial Services, Inc. and Hohl Industrial Sales, Co., Inc. 1624 Genesee Street Utica, NY 13502 James E. Eagan, Esq.
Feldman, Kieffer & Herman
Attorneys for Fourth Party Defendant Mark J. Anders, M.D.
110 Pearl Street, Suite 400
Buffalo, NY 14202
Robert C. Mulvey, J.
This is an action brought pursuant to Sections 200, 240 and 241 of the Labor Law for personal injuries sustained by the plaintiff on July 8, 1999 as the result of a fall from a ladder at defendant Outokumpu American Brass' (hereinafter "American Brass") factory in Buffalo. At the time of the incident, the plaintiff was employed by third-party defendant Hohl Industrial Services, Inc. (Hohl) and was performing work on a beltwrapping machine.
The action was commenced on March 27, 2000. The third party action was commenced [*2]on September 21, 2000 alleging negligence on the part of the plaintiff's employer and seeking contractual and common law indemnification or contribution. The fourth party action was commenced on April 26, 2004 alleging that the plaintiff's injuries are due in part to negligence arising from the placement of an intramedullary rod in the treatment of the plaintiff's leg fracture.
The following motions shall be determined herein:
1.
Defendant American Brass' motion for summary judgment dismissing the complaint and against third party defendant Hohl;

2.
Fourth party defendant Howmedica Osteonics Corp.'s motion for severance of the fourth party action;

3.
Fourth party defendant Anders' motion for summary judgment dismissing the fourth party action and for severance of the fourth party action;

4.
Plaintiff's cross-motion for partial summary judgment and for severance of the fourth party action.




BACKGROUND

At the time of plaintiff's injury he was preparing to perform work on the structural steel base of a belt-wrapper/recoiler/rewinder machine in the American Brass facility. He and a co-worker began to disconnect the machine so that it could be picked up and moved so that they could repair the metal framing underneath. (Kirk deposition, p. 62) They attached rigging to the machine so that a crane could lift it. (65) The plaintiff noticed that a strap on the rigging was twisted so he climbed a step ladder to untwist it. (67) When he started back down the ladder, he was struck by the machine as it shifted (see affidavit of John Becker, sworn to on November 16, 2002), and fell to the ground. No safety harness was provided, and the ladder was not tied off or secured.
Mark Leahey, a senior mechanical project engineer employed by American Brass,
described the overall project as follows:
"The July shutdown is usually a week long period when we shut the majority of the production machinery down and we work on different parts of each machine. So, there may be some project work, some maintenance work and at the end of the week we have to have everything completed and turned back over to production. (P. 30) [*3]
Mr. Leahey described the plaintiff's assignment as follows:
Q. Do you recall them being hired to rebuild the belt wrapper frame?
A. Yes.
Q. What did that job entail?
A. Basically to remove the belt wrapper or the recoiler from the subbase and inspect the components. Replace any worn out components and then put the belt wrapper and the recoiler frame back on the base.
Q. What are the components of the base?
A. It's a structural frame that's anchored to the floor and there's some wear plates that help guide or keep the recoiler moving straight as it travels north, south winding the strip.
Q. Would the job entail, if necessary, welding of the structural steel for cracked welds?
A. Possibly.
Q. Would it require replacement of any steel?
A. Replacing wear strips.
Q. What are wear strips, precisely, what are they made of?
A. They're made out of a harden carbon material. They are heat treated to be very hard and that base has cam rollers that it rolls on and the cam roller meet up with the wear strip or the wear plate. So once the wear plate wears out they need to be replaced.
Q. How are they attached to the frame?
A. I believe they're bolted.
......................

Q. How do you go about doing that to access the frame?
A. Well, the recoiler or the rewinder only moves approximately 12 inches and because one base is on top of another you can't physically see the wear plates or the winders so you have to remove the entire recoiler machine to inspect the base.
(Leahey deposition, pp. 43-45)
Richard Phillips, a manager of field operations for Hohl, testified that repair work on the structural steel base was routine maintenance, similar to changing spark plugs. (Phillips deposition,
p. 41) He described the base as a bar bolted to the top of a track system, and not connected to the structural support of the building (43) The purpose of the project was to
determine if the structural steel needed to be replaced, since it could break and cause damage to the machine. (45)
He testified that the work to be done on the structural steel frame underneath the machine [*4]was actually on the "guides for the wear bars." (P. 10)"They were to work on the guides."
(P.23) It was changing some guides and some cam rollers and things that they would normally do but they couldn't get at during the course of work, so they shut it down. We lifted it up and we look and see what has to be done, that's why we couldn't give them a lump sum price." (P. 24) He had been involved in shutdowns at the facility for several years, and said that shutdowns were done biannually. (40) The machine was not broken. (41) The wear beams were a bar that was bolted to the top of a track system, and not connected to the structural support of the building itself. (43) and they provide a track for the machine to run back and forth on. (44). They're built to be replaced (45).
Ted Albers, a foreman employed by Hohl, described the work as "basically an inspection. Look for worn out parts and replace what needed to be done." (Albers deposition, p. 15)

Applicability of Sections 240 and 241 of the Labor Law
The question presented is whether there is a triable issue of fact concerning whether the plaintiff was injured while engaged in any of the activities covered by either Section 240(1) or 241(6) of the Labor Law.
The purpose of these statutes is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves [Martinez v. City of New York, 93 NY2d 322 (325-326 (1999)]; consistent with this objective, the statutes impose absolute liability on owners, contractors and their agents for any breach of the statutory duty that proximately causes a plaintiff's injury; as a result, this strict liability provision is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed [Gordon v. Eastern Railway Supply, 82 NY2d 555, 5599 (1993)]; the critical inquiry in determining coverage under the statute is what type of work the plaintiff was performing at the time of injury' [Joblon v. Solow, 91 NY2d 457 (1998)]. Whether a particular activity falls within Section 240(1) must be determined on a case-by-case basis, depending on the context of the work. Prats et al. v. Port Authority of New York and New Jersey, 100 NY2d 878, 883 (2003).
The plaintiff contends that the plaintiff's tasks were only a small part of a much larger project during the July shutdown, and that because the larger project included construction, alteration and repair, his activity must be viewed in that context. However, there is insufficient evidence that the plaintiff was engaged in an enumerated activity during the project. See, Prats et al. v. Port Authority et al., id., at 883.
Although repair is among the enumerated activities, it has been distinguished from [*5]routine maintenance. If it is merely routine, regularly scheduled maintenance where components are replaced due to normal wear and tear, the activity falls outside the ambit of Sections 240(1) and 241(6) of the Labor Law. Esposito v. New York City Industrial Development Agency, 1 NY3d 526 (2003); Detraglia v. Blue Circle Cement Company, et al., 7 AD3d 872 (Third Dept., 2004).
It is uncontroverted that plaintiff's fall from the ladder occurred while he was attempting to untwist the strap used to hoist industrial machinery. This activity was clearly necessary and incidental to his primary task of inspection of the structure beneath the machinery for possible replacement of steel components. However, there is no evidence that either the hoisted machine or the steel base was broken, inoperable or not functioning
properly. See, LaFountaine v. Albany Management, Inc., 257 AD2d 319 (Third Dept., 1999). Activities in the nature of routine maintenance, absent proof that the machine or
object being worked upon was inoperable or not functioning properly are not encompassed by Section 240 of the Labor Law. Id.
The Court has reviewed the contract documents to assist in the determination of the nature of the activity.
Deposition exhibit 17 is a proposal dated June 8, 1999 for work to be done during the July shutdown. The plaintiff's assignment at the time of his accident was on "133 Strand" and described as "repair belt wrapper."
Exhibit 18 is a revision to the proposal, dated July 3, 1999, and describes specific work to be done on Strand 133, including safety circuit tests, replacing heating baffles, changing cooling coils, overhaul of bridle motors, repair rewind beltwrapper frame, change brushes, etc.
Exhibit 19 is a requisition to purchase dated June 16, 1999 for 133 Strand Shutdown Repairs indicating "inspect and change radiant U-tubes as necessary," "remove and reinstall
bridge motors" "change cooling coils" "change heat fans" and "repair rewind beltwrapper frame

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