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Attorneys Sheryl Sanford and John Bieder Obtain Summary Judgment in NY Labor Law Action After Establishing Injury-producing Work Does Not Fall Under the Definition of “Construction”

In Rodriguez v. Antillana, Bronx County Index No. 301012/2014, Sheryl Sanford and John Bieder represented an out-of-possession landlord in a personal injury action. Plaintiff alleged that he was in the course of his employment with J & C Refrigeration Corp., performing a renovation project at a grocery store located in the Bronx. Specifically, plaintiff claimed that he was burned by hot oil from a refrigerator pipe. It was alleged that the oil burned the plaintiff's upper extremities, resulting in significant injuries including RSD. 

Both sides moved for summary judgment, relying upon experts to support their positions. Relying on his extensive background in plumbing, John Bieder designated as an expert Local 630 Steamfitter’s Training instructor who was fully familiar with the installation and removal of condensers, evaporators, open refrigeration systems and cold rooms. The expert personally installed the same type of industrial-sized condensers and evaporators that plaintiff was in the process of installing at the time of the accident. Based on his experience, the expert attested that it is his professional opinion, within a reasonable degree of certainty in the context of HVAC practices and procedures, that plaintiff should never have used an acetylene torch to remove the 10-inch pipe connected to the condensing unit and the proper way to go about this task is to use a mechanical pipe cutter and cut away from the service valve.  

Notwithstanding that there were two theories of comparative fault as against plaintiff, Sheryl and John moved for summary judgment on the basis that: (1) the negligence claims against their client (an out-of-possession landlord) should be dismissed; and (2) plaintiff’s Labor Law claims should be dismissed because the conduct plaintiff engaged in does not constitute “construction” under Labor Law § 241(6). Sheryl and John argued that the Labor Law should not apply because plaintiff was simply connecting two pipes necessary to refrigerate a freezer unit that was already installed. Plaintiff countered that there were  questions of fact as to whether the installation of this unit was part of a larger renovation project. Relying upon the Second Department case of Martinez v. City of New York, 901 N.Y.S.2d 339 (2d Dep’t 2010), Sheryl and John argued that the connection of the pipe at issue was similar to the plaintiff checking a gas valve necessary to install the refrigeration unit in Martinez. They pointed out that in Martinez, the Second Department found that the act of checking a valve does not fall under the category of construction, excavation or demolition so as to support a claim under Labor Law 241(6) even if the work was necessary or incidental to the larger renovation project.  

The Court, agreeing with Sheryl and John, rejected plaintiff’s contention that the work was part of a larger renovation project and dismissed all claims against Sheryl and John’s clients in a well-reasoned decision.   

Marnie Piazza