Words matter. Regardless of what aspect of the law you are dealing with, whether as an attorney or a judge, the inclusion or omission a word or phrase, or its definitional interpretation, can determine the outcome of a case. As writers (or wordsmiths) of motions, briefs, decisions, etc., we are often called upon to decipher the "legislative intent" of a statute or what the parties meant in a contract and the like. Here are just three examples covering three distinct areas of the law:  Personal Injury, criminal law and landlord and tenant law.

Personal Injury

Recently, in Corning v. Elms Realty, NYLJ, 1/6/20, the plaintiff sought recovery for his on the job injuries pursuant to, inter alia, Labor Law §240(1), commonly referred to as the "Scaffold Law." See Heymann, New York's Scaffold Law and the Evolution of Elevation, NYS Bar Journal, January 2013, Vol. 85, No. 1.

In relevant part to this case is the opening sentence of said statute, which describes whether the nature of the work performed comes within its ambit: "All contractors and owners and their agents … in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure … ." (emphasis added).

The accident, in this case, occurred during the dismantling of a temporary stage set that plaintiff and other workers had previously built for a television show. Once dismantled, the plaintiff, along with his co-workers, attempted to push a 350-pound wall onto a truck from the lift gate. The wall was too big to fit into the truck and got jammed. While maneuvering the wall in an effort to get it unjammed, it fell on the plaintiff before he could jump out of harm's way. According to the plaintiff, "he was injured during the demolition and/or alteration of a stage set shed, which is essentially a free standing room, which is a structure which Labor Law §240(1) applies to, and that he was injured by a falling object." (emphasis added).

In opposition to the plaintiff's motion for partial summary judgment on liability, the defendant asserted that the stage set was not a structure as intended by the statute and loading the wall on the truck did not constitute the altering or building of a structure.

The court held for the plaintiff for the reasons that will be discussed below.

In a previous article, "Scaffold Law: A 'Defining' Moment," NYLJ (June 1, 2018), p.4, col.4, I discussed the case of DeJesus v. Metro-North Commuter RR dba Metro-North RR, NYLJ, 3/30/18, p.35, col.3, where the plaintiff was injured while cutting and removing a tree that was felled by Hurricane Sandy and landed on top of the "catenary" wires above the railroad tracks. The plaintiff was denied summary judgment, which was affirmed by the Appellate Division, because both courts determined that being struck by a portion of the falling tree that was propelled into the air when the wires were cut, was not covered by the statute. However, before the trial court could reach that determination it had to first address the issue as to whether the "catenary" wires themselves constituted a "structure".

There, the court, relied on the definition of "structure" in Lewis-Moors v. Contel of New York, 78 N.Y.2d 942 (Ct. of App. 1991), which held that "Under Labor Law §240(1), a 'structure' is 'any production or piece of work artificially built up or composed of parts joined together in some definite manner' (Caddy v. Interborough R. T. Co., 195 NY 415, 420)." Based on that decision, the court determined that the catenary wires did, in fact, constitute a structure under the statute. While recognizing that tree cutting and removal are not among the jobs covered under the statute, the plaintiff's activities "constituted the first step in effectuating repairs to the catenary wires" and, therefore, the provisions of Labor Law §240(1) were applicable. Yet, the resulting injury from the falling tree was not covered. Confused? This is the legal conundrum that comes into play in almost every suit commenced under the Scaffold Law. For additional cases discussing "definitions" and "structures" under Labor Law §240(1), see Joblon v. Solow, 91 N.Y.2d 457 (1999); McCoy v. Abigail Kirsch at Tappan Hill, 2012 NY Slip Op 06128.

Similarly, in Corning, above, the trial court had to determine whether the temporary stage set and its components constituted a "structure" as contemplated under the law, even when taken apart. The court found plaintiff's job of constructing and deconstructing the stage set shed, consisting of four walls, one with a steel window, and a roof akin to the plaintiff working on the wedding canopy in the Kirsch case. Citing Caddy v. Interborough R. T. Co., 195 NY 415, 420, supra, the court further set forth several examples of "structures" such as a ticket booth at a convention center, a substantial free standing Shell gasoline sign, a power screen being assemble at a gravel pit, a pumping station, a utility van and a window exhibit at a home improvement show as meeting the criteria that "constituent parts be artificially built up or joined together in a definite, deliberate manner".

Determining whether or not something constitutes a "structure" must be done on a case-by-case basis and is clearly fact specific. Yet, as many of the court decisions pertaining to actions brought pursuant Labor Law §240(1) demonstrate, merely working on a building or structure does not automatically result in a finding favorable to a plaintiff. See, e.g., DeJesus, supra.

Here, the court concluded that although the structure had already been dismantled before plaintiff incurred his injuries did not remove it from the statute's purview. Of course, another aspect of these types of cases is whether the injury was elevation related and whether the plaintiffs' superiors provided the appropriate safety equipment set forth in said statute ["All contractors and owners and their agents ... shall furnish or erect, or cause to be furnished or erected for the purpose 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."]. Addressing the obvious, the court stated that "[c]learly, the plaintiff should have been provided a larger truck" on which to load the wall and doing so "'required either hoisting equipment or a device designed to secure the [wall] against tipping or falling over'" (citing Alvi v.Sloane-Kettering Inst. for Cancer Research, 176 A.D.3d 561 (1st Dept. 2019)). Nor was the plaintiff barred recovery because the elevated lift gate was at the same level as the truck. See Wilinski v. 334 E.92nd Hous. Dev. Fund, 18 N.Y.3d 1, 9 (2011))

Criminal Law

Reading the spectrum of decisions regarding the definition of "buildings" or "structures" under the Scaffold Law, as discussed above, often brings to mind a published decision I drafted in 1983 as a Principal Law Clerk to a Queens Supreme Court Justice. People v. Sevigny, 121 Misc.2d 580 (1983), involved one of two individuals who, acting in concert, were indicted, for burglary in the third degree, criminal mischief in the second degree and a violation of §4218 of the Public Health Law. Sevigny and his accomplice, Fennell (whose case was assigned to a different Justice), were accused of having broken into 10 mausoleums and desecrating numerous crypts, caskets and their contents (i.e., removing limbs and throwing them on the floor). In addition, they damaged and defaced religious pictures and books of the families of the deceased as well as the mausoleums themselves with graffiti, all of which were located on the grounds of Bayside Cemetery, in the County of Queens.

Sevigny moved to dismiss the indictment based on a 95-year old Court of Appeals decision, People v. Richards, 108 NY 137 (1888). Until the Sevigny decision, Richards was the only case pertaining to the issue of whether a mausoleum could be burglarized under the N.Y. Penal Law. In determining that no such crime existed under the statute base on the definition of buildings at that time, Richards concluded that burglary was an "offense against the habitation of men" and that there was a distinction between crimes against the living and those of human decency. It held, in relevant part, as follows: "[W]e come to the belief that [the structure] is really nothing more than a grave above ground … intended solely for the interment of dead bodies and the structure itself can be put to no other possible use without altering its nature and purpose. *** [W]e do not think it becomes a building within the statute in regard to burglary any more because it is placed above the ground when its sole purpose is that it shall be used as furnishing graves for the burial of the dead." Richards, 108 NY at 147. Clearly, the Richards court could not envision what mausoleums would become in the ensuing century.

After researching the definition of "buildings" and "structures" in the Penal Law, the Building Code of the City of New York and the Administrative Code of the City of New York, it was determined that a mausoleum would definitely qualify as a "building" that could be burglarized, Richards notwithstanding. See People v. Richards, 108 NY at 582 for what constituted "buildings" and "structures" in the 1888 statutes. In denying the motion to dismiss the Supreme Court clearly expressed its disdain and "revulsion" in rejecting the defendant's position, stating that "it cannot, in good conscience, accept the rationale of the Richards court, which would warrant dismissal of the instant indictment." At the heart of the decision the court opined:

Today, as a result of space limitations, it has become commonplace for cemeteries to erect mausoleums several stories high containing several hundred crypts. These modern facilities with inside rooms large enough to permit groups of people to visit and assemble at any one time are enclosed permanent structures that serve a useful function for the living family members of the deceased buried therein. To argue that an above-ground structure, with doors, windows, and roof, cannot be the object of a burglary because it "stores" the remains of the deceased whereas, for example, a shed used for the storage of garden tools is subject to such recognition under the law is illogical and perhaps even immoral. The sacred preservation of human remains is a fact of life, and it is the living who must see that the integrity of burial sites, be they above or below ground, remain undisturbed.

This court takes direct issue with the previously drawn distinction between crimes against the property of the living and crimes against public decency such as the desecration of structures housing the dead. Who suffers by the destruction of a mausoleum and its sacred contents? The answer must obviously be the living.

Subsequent to this decision, Sevigny pleaded guilty to the top count. His accomplice, Fennell, went to trial and was convicted of burglary. He appealed.

In People v. Fennell, 122 A.D.2d 69 (2d Dept. 1986), the appellate court affirmed Fennell's conviction. The court noted that in 1965 the relevant section in the Penal Law was amended to "expand[ ] the definition to include anything that comes within the 'ordinary meaning' of the word 'building'" and that the reasoning of the Richards court, in limiting its interpretation of "building" under the rule of "ejusdem generis" to exclude mausoleums, by failing to give the broadest meaning to the phrase "other erection or inclosure," in the then statute, was no longer applicable under the current law. In rejecting "ejusdem generis" as being a too constrictive in defining words in a statute, the court concluded that "[a]s a mausoleum is a constructed edifice enclosed by walls, covered by a roof, designed to stand permanently, and serving a useful purpose, it is included within the ordinary meaning of the word 'building' (see, People v Sevigny, 121 Misc.2d 580). Hence, the defendant was properly convicted of burglary in the third degree."

As a direct result of the Sevigny decision, the Penal Law was amended to include mausoleums as "buildings" that can be burglarized. See Heymann, "RIP—Is A Mausoleum A 'Building' Under The New York Penal Law," Queens Bar Bulletin, Vol. L, No.7, April 1987, p. 26-29.

Landlord and Tenant Law

In Congregation Netzach Yisroel v. Santana (& Fernandez), 32 Misc.3d 555 (Civ. Ct. Kings Co. 2011, Heymann, J.) the issue was whether a religious corporation could recover rent-stabilized premises for the purpose of establishing a Yeshiva, for charitable and educational purposes, on a not-for-profit basis. The thrust of the parties' arguments hinged on the words "any" and "exclusively" as emphasized in the statute set forth below.

The subject premises at the crux of this case was a 12-family unit apartment building that was purchased by the petitioner in order to renovate it and relocate its Yeshiva that was operating in a rental facility. But for three remaining tenants, the building was vacant. The petitioner served them termination and non-renewal notices pursuant to §2524.4(b)(1) of the Rent Stabilization Code, on the grounds that it needed the premises "for its own non-residential use in connection with its charitable and educational purposes." Thereafter, the petitioner commenced holdover proceedings and the respondents moved for dismissal.

The applicable statute, RSC §2524.4, as referenced above, reads, in pertinent part, as follows:

The owner shall not be required to offer a renewal lease to a tenant … and may commence an action or proceeding to recover possession in a court of competent jurisdiction, upon the expiration of the existing lease term, if any, after serving the tenant with a notice as required … only on one or more of the following grounds: … (b) Recovery by a not-for-profit institution. (1) The owner is a hospital, convent, monastery, asylum, public institution, college, school dormitory, or any institution operated exclusively for charitable or educational purposes on a nonprofit basis, and the owner, upon notice to the tenant … requires the housing accommodation for its own use in connection with its charitable or educational purposes [and]:(ii) the owner requires the housing accommodation for a nonresidential use in connection with its charitable or educational purposes." (emphasis added).

It was the position of the petitioner that, notwithstanding the specific institutions listed, it would qualify for exemption because as a religious corporation it would be covered by the language "any institution." The respondents, on the other hand, relied on the narrowly worded phrase "exclusively for charitable or educational purposes" to support their positions that the petitioner's goals and purposes are beyond the scope intended by the legislature.

At the time this decision was written, there was only one published opinion that directly addressed this issue in a case with a similar set of facts. The Court of Appeals in Eaton v. New York City Conciliation and Appeals Bd., 56 N.Y.2d 340 (1982), clearly enunciated that "where the statutory language is clear and unambiguous, the court should construe the statute to give effect to the plain meaning of the words uses." Id. at 345.

In Santana, the statute exempted from rent stabilization housing accommodations owned or operated by any institution operated exclusively for charitable or educational purposes on a nonprofit basis. However, there was no exemption for institutions operated for religious purposes nor was there statutory language which would suggest such legislative intent. The statute described the particular situations to which it was to apply, and, therefore, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded." Eaton, 56 N.Y.2d at 345-46. Had the legislature intended to extend the exemption to religious institutions, it could have chosen to do so through appropriately worded legislation. The legislature's failure to include religious institutions generally within the exemption provisions of the statute created an "irrefutable inference" that housing accommodations owned or operated by religious institutions are outside the scope of this statute. Id.

The respondents maintained that the holding in Eaton precluded the court from reaching any conclusion contrary thereto. The petitioner, on the other hand, averred that because the Yeshiva was then operated as a charitable, educational and not-for-profit institution it fell squarely within the legislative intent of the statute. During oral argument, petitioner sought to distinguish Eaton on the basis that the religious institution in that case was not a not-for-profit organization as was the petitioner. While the court agreed that the phrase "any institution" opened the door to allow for religious institutions, the language immediately thereafter, "operated exclusively for charitable or educational purposes," closed that door if the petitioner corporation was not used solely for that intention.

To determine the goals and purposes of the petitioner, it was necessary to examine the petitioner's certificates of incorporation. On June 13, 2004, a certificate of amendment of the certificate of incorporation of Congregation Netzach Yisroel was executed. The relevant amendment for the purpose of this article was section (f) of Paragraph 3, which set forth the purposes of the corporation: "Notwithstanding any other provision of these articles, the corporation is organized exclusively for one or more of the following purposes: religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition … or for the prevention of cruelty to children or animals … and shall not carry on any activities not permitted to be carried on by a corporation exempt from Federal income tax …"  (emphasis added).

The clear language of the amended certificate of incorporation does not limit the institution solely to charitable and/or educational purposes. In fact, rather than reduce the extent of its purposes, it sought to expand them. While the corporation may be not-for-profit and include among its exclusive purposes charitable and/or education goals, the list is far more expansive than that which the statute mandated. The statute was completely narrow in its scope and left no room for amplification of its intent. While the court understood that petitioner purchased the subject premises for the purpose of converting it into an educational institution, its good intentions were not sufficient to overcome the statutory hurdle created by the legislature.

As noted above, if the focus here was only on the word any, then the petitioner's argument that a religious corporation would be included among the institutions that can maintain this proceeding would be correct. However, having then incorporated the word exclusively and limited it to only charitable or educational purposes, the legislature intended that any institution that has more than just those two purposes is not exclusive and cannot refuse to renew rent-stabilized tenancies.

The attempt by the petitioner to include into the statute that which was specifically excluded was to no avail.

As I said at the outset, words matter.

George M. Heymann is a retired NYC Housing Court Judge, adjunct professor of law at Maurice A. Deane School of Law at Hofstra University, certified Supreme Court mediator, and of Counsel, Finz & Finz PC.