Opinion
2014-11-18
Timothy KIRCHER, Plaintiff–Respondent, v. The CITY OF NEW YORK, et al., Defendants–Appellants.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for appellants. Hach & Rose, LLP, New York (Michael A. Rose of counsel), for respondent.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for appellants. Hach & Rose, LLP, New York (Michael A. Rose of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, SAXE, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered February 24, 2014, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion denied.
The motion court correctly concluded that the flooring on which plaintiff was working, which was comprised of wooden planks with gaps between them seven stories above the bottom of a shaft below, confronted plaintiff with an elevation-related hazard to which Labor Law § 240(1) is applicable, regardless of whether the flooring was permanent ( see Jones v. 414 Equities LLC, 57 A.D.3d 65, 79–80, 866 N.Y.S.2d 165 [1st Dept.2008]; Carpio v. Tishman Constr. Corp. of N.Y., 240 A.D.2d 234, 235–236, 658 N.Y.S.2d 919 [1st Dept.1997] ). Triable issues of fact exist, however, as to whether the work in which plaintiff was engaged when his accident occurred constituted routine maintenance or a repair covered under the statute ( see Montalvo v. New York & Presbyt. Hosp., 82 A.D.3d 580, 919 N.Y.S.2d 18 [1st Dept.2011]; see also Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ).