Opinion
13089, 100759/10.
10-02-2014
John MOSCOSO, et al., Plaintiffs–Appellants, v. OVERLOOK TOWERS CORP., Defendant–Respondent.
Grey & Grey, LLC, Farmingdale (Sherman B. Kerner of counsel), for appellants. Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for respondent.
Grey & Grey, LLC, Farmingdale (Sherman B. Kerner of counsel), for appellants.
Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for respondent.
TOM, J.P., FRIEDMAN, ACOSTA, DeGRASSE, GISCHE, JJ.
Opinion Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 9, 2013, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Dismissal of the negligence and Labor Law § 200 claims was proper in this action where plaintiff John Moscoso, an elevator mechanic, was injured when he slipped on ice and fell as he descended an exterior steel staircase that led from the roof of defendant's building to the elevator motor room. Plaintiff testified that there was a freezing rain falling at time that he slipped, and “[a] property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” ( Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748 [2005] ; see Weinberger v. 52 Duane Assoc., LLC, 102 A.D.3d 618, 959 N.Y.S.2d 154 [1st Dept.2013] ). The climatological records submitted by plaintiff fail to raise a triable issue of fact inasmuch as they conflicted with plaintiff's own testimony as to the weather conditions at the time of the fall (see Paucar v. Solaro, 111 A.D.3d 569, 975 N.Y.S.2d 658 [1st Dept.2013] ).
Furthermore, dismissal of the claims alleging violations of Labor Law §§ 240(1) and 241(6) was also appropriate as the record establishes that these sections have no application to the instant matter where plaintiff was engaged in the routine maintenance of the building's elevators (see e.g. Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53, 781 N.Y.S.2d 477, 814 N.E.2d 784 [2004] ; Esposito v. New York
City Indus. Dev. Agency, 305 A.D.2d 108, 760 N.Y.S.2d 18 [1st Dept.2003], affd. 1 N.Y.3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ).