Opinion
2001-00899
Argued September 3, 2002.
September 24, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated January 2, 2001, as granted that branch of the defendants' motion for summary judgment which was to dismiss his causes of action pursuant to Labor Law §§ 240(1) and 241(6).
Siben Siben, LLP (Sweetbaum Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant.
Slevin, Sold, Neubardt, Weisman, Samberg Faillace, Mineola, N.Y. (Patricia Hart Nessler of counsel), for defendants third-party plaintiffs-respondents.
Bee, Eisman Ready, LLP, Mineola, N.Y. (Richard P. Ready and Michael R. Janes of counsel), for third-party defendants-respondents.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, REINALDO E. RIVERA, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
It is well settled that to assert an actionable claim under Labor Law § 240(1), a plaintiff must show that he was injured during "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240; see Martinez v. City of New York, 93 N.Y.2d 322, 325; Joblon v. Solow, 91 N.Y.2d 457, 464; Luthi v. Long Is. Resource Corp., 251 A.D.2d 554, 555). In the present case, the defendants established their prima facie entitlement to summary judgment by submitting evidence demonstrating that the plaintiff was injured while on a lunch break, and that he was not engaged in the type of activity covered under Labor Law § 240(1) (see Martinez v. City of New York, supra; Joblon v. Solow, supra; Luthi v. Long Is. Resource Co., supra).
In opposition to the defendants' motion for summary judgment, the plaintiff submitted an affidavit which directly contradicted his earlier deposition testimony. This submission clearly constituted an attempt to avoid the consequences of the plaintiff's earlier admissions by raising feigned issues of fact, and was insufficient to avoid summary judgment (see Barretta v. Trump Plaza Hotel Casino, 278 A.D.2d 262, 263; Bloom v. La Femme Fatal of Smithtown, 273 A.D.2d 187; Califano v. Campaniello, 243 A.D.2d 528, 529-530).
The plaintiff's Labor Law § 241(6) cause of action was also properly dismissed because the accident did not arise in a construction context (see Jock v. Fien, 80 N.Y.2d 965; Urbano v. Plaza Materials Corp., 262 A.D.2d 307, 308; Haghighi v. Bailer, 240 A.D.2d 368), and because the plaintiff failed to produce any evidence of a violation of any specific implementing regulation (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494; Greenwood v. Shearson, Lehman Hutton, 238 A.D.2d 311, 312-313; Weaver v. Chan, 224 A.D.2d 519).
Thus, the defendants established their prima facie entitlement to summary judgment with respect to the Labor Law § 241(6) claim. The plaintiff, in opposition, failed to raise a triable issue of fact.
ALTMAN, J.P., GOLDSTEIN, H. MILLER and RIVERA, JJ., concur.