Opinion
2017-01137 Index No. 4415/11
12-11-2019
Patrick LOPIPERO, respondent, v. MTA LONG ISLAND RAIL ROAD, appellant.
Mark D. Hoffer, Jamaica, N.Y. (Thomas L. Chiofolo, of counsel), for appellant. Levine and Wiss, PLLC, West Hempstead, N.Y. (Anthony Ferrante and Mitchell Dranow, Mineola, of counsel), for respondent.
Mark D. Hoffer, Jamaica, N.Y. (Thomas L. Chiofolo, of counsel), for appellant.
Levine and Wiss, PLLC, West Hempstead, N.Y. (Anthony Ferrante and Mitchell Dranow, Mineola, of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are denied. The plaintiff was employed by nonparty Ecology Sanitation (hereinafter Ecology), a company engaged in, among other things, the business of removing discarded railroad ties. On March 31, 2010, the plaintiff was assisting in the removal of discarded railroad ties, which were stacked in a pile at the Tuckahoe Crossing in Southhampton. The plaintiff allegedly was injured when one of the ties fell from the pile and struck his right leg.
Thereafter, the plaintiff commenced this personal injury action against the defendant, which was the alleged owner of the railroad ties and of the property where the accident occurred, alleging violations of Labor Law §§ 200, 240(1), and 241(6). In the order appealed from, the Supreme Court granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The defendant appeals.
"To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish, among other things, that he or she was injured during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" ( Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d 650, 652–653, 59 N.Y.S.3d 115 [internal quotation marks omitted]; see McCarthy v. City of New York, 173 A.D.3d 1165, 1165, 103 N.Y.S.3d 550 ). Labor Law § 240(1) "does not cover routine maintenance done outside the context of construction work" ( Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 ; see Trotman v. Verizon Communications, Inc., 166 A.D.3d 707, 708, 87 N.Y.S.3d 183 ). "Generally, courts have held that work constitutes routine maintenance where the work involves ‘replacing components that require replacement in the course of normal wear and tear’ " ( Wass v. County of Nassau, 173 A.D.3d 933, 935, 103 N.Y.S.3d 478, quoting Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 ).
Here, the plaintiff's submissions failed to eliminate triable issues of fact as to whether, at the time of his accident, he was engaged in an enumerated activity protected under Labor Law § 240(1), or whether he was engaged in routine maintenance (see Wass v. County of Nassau, 173 A.D.3d at 934, 103 N.Y.S.3d 478 ; Ferrigno v. Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d at 653, 59 N.Y.S.3d 115 ; see also McCarthy v. City of New York, 173 A.D.3d at 1166–1167, 103 N.Y.S.3d 550 ). The plaintiff also failed to establish, prima facie, that his work took place in the context of a larger project which "encompassed activity protected under the statute" ( Fitzpatrick v. State of New York, 25 A.D.3d 755, 757, 809 N.Y.S.2d 515 ; see Trotman v. Verizon Communications, Inc., 166 A.D.3d at 708, 87 N.Y.S.3d 183 ). Further, the plaintiff failed to establish, prima facie, that his injuries arose from construction or demolition work within the meaning of Labor Law § 241(6) (cf. Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d at 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 ; Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697, 954 N.Y.S.2d 113 ). Since the plaintiff failed to meet his prima facie burden, the Supreme Court should have denied those branches of his motion which were for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6), regardless of the sufficiency of the defendant's papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
SCHEINKMAN, P.J., AUSTIN, ROMAN and CONNOLLY, JJ., concur.