First published: Nov 2023
The Fallout From a Ladder Fall
TAKEAWAY There is little to be done about a law that finds you liable though you did nothing wrong. New York’s Labor Law can seem cruel at times. There is a very important lesson here, however, and that is before a board allows a renovation, the shareholder must sign an alteration agreement. This is critically important. Not only will it set forth the rules for a renovation (which if broken, the board can ask a court to suspend the work), but it will also require a shareholder to indemnify the cooperative (or condominium) in the event the renovation causes a problem, whether it occurs during the renovation (such as drilling into a gas pipe) or after (a leak results years later from defective plumbing). Alteration agreements must be reviewed, updated, signed and kept in a safe place for future reference. A board might consider an extra copy to be placed either in a safe place (i.e. a board room), with their lawyer or some other alternate location. That’s how important an alteration agreement can be.
BAKHTIYOR MELIKOV V. 66 OVERLOOK TERRACE CORP.
WHAT HAPPENED Omar Fakhoury, a shareholder at 66 Overlook Terrace, a 118-unit co-op near Ft. Tryon Park and the Cloisters in upper Manhattan, contracted with Patriot Plumbing & Heating, who in turn contracted with White Star General Contractors Corp., to do some renovation work in his apartment. In June 2017 Bakhtiyor Melikov, the contractor’s employee, was painting the crown molding in the apartment when he claimed that he slipped and fell from a 7-foot ladder. He said he was standing on the second to top step of the A-frame ladder for about 15-20 minutes when the accident happened.
The co-op and its managing agent said the co-op’s ceiling is only 8 feet high, so there was no way a 7- foot A-frame ladder could be used. Additionally, a co-worker and the company employing Melnikov all stated that there was no A-frame ladder in the apartment. Melnikov’s boss noted the ceiling area which was being painted only had seven and a half foot ceilings, which could be reached by hand without a ladder, although there was a 2-foot stepladder available in the apartment.
Nevertheless, Melikov brought a motion for summary judgment against the co-op and its managing agent, including a Labor Law action under Section 240(1).
IN COURT The court denied Melnikov’s motion for summary judgment, since there was a dispute about whether an A-frame ladder was used, and whether he could have possibly been on the second to the top rung of a seven-foot ladder (as he claimed). The court determined that a trial would be required to ascertain the truth.
Likewise, as to the motion to dismiss, the court said a jury would have to determine the facts. Even though it determined that Melikov’s claims seemed impossible, the court felt that it could not, as a matter of law, determine the likelihood of the accident happening the way Melnikov said it did, since no one saw the accident (other than Melikov).
The only other remaining claim was that of the co-op and its managing agent for contractual indemnification. In other words, who would be financially responsible for Melikov’s injury if Melikov were found to be truthful? The court considered two documents in this claim: the standard building alteration agreement and the co-op’s proprietary lease. The proprietary lease required an alteration agreement for the work, but no one had a signed copy of it. This meant that Fakhoury violated the lease. Because of this, and a lack of evidence that the co-op or its managing agent was negligent or controlled or supervised the work, Fakhoury would be liable for damages pursuant to the indemnification provision in the proprietary lease. The court also reasoned that if the co-op and its managing agent were found liable under the Labor Law, which is a strict liability statute that does not require negligence, Fakhoury would still be financially responsible pursuant to the indemnification provision in the proprietary lease.