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Noriega v. State Street Bank Trust Co.

Appellate Division of the Supreme Court of New York, First Department
Apr 18, 2000
271 A.D.2d 313 (N.Y. App. Div. 2000)

Opinion

April 18, 2000.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 3, 1999, which, to the extent appealed from, denied defendants-appellants' cross motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion to the extent awarding defendants-appellants summary judgment dismissing plaintiff's Labor Law § 240 LAB.(1) claim, and otherwise affirmed, without costs.

Steven B. Dorfman, for plaintiff-respondent.

Carol R. Finnochio, for defendants-appellants.

WILLIAMS, J.P., ELLERIN, LERNER, ANDRIAS, FRIEDMAN, JJ.


The motion court erred in denying defendants-appellants' summary judgment dismissing plaintiff's Labor Law § 240 LAB.(1) claim because plaintiff's fall was not, under the circumstances of its occurrence, attributable to the sort of elevation-related risk against which Labor Law § 240(1) was intended to afford protection (see, Galloway v. Tenth City Assocs., 228 A.D.2d 254, 255). The motion court, however, properly denied defendants-appellants' cross motion for summary judgment insofar as it sought dismissal of plaintiff's Labor Law § 241(6) claim. Contrary to appellants' arguments in support of dismissing that claim, plaintiff was lawfully frequenting the premises in question at the time of his accident (see, 12 NYCRR § 23-1.4[b][39]; Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577), and plaintiff's work cleaning office window setbacks may constitute "construction" within the meaning of Labor Law § 241 Lab.(6) (see, 12 NYCRR § 23-1.4[b][13]). Finally, in view of factual questions as to whether defendants-appellants had notice of the condition that allegedly caused plaintiff's harm, the motion court properly denied defendants-appellants summary judgment dismissing plaintiff's common-law negligence claim.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Noriega v. State Street Bank Trust Co.

Appellate Division of the Supreme Court of New York, First Department
Apr 18, 2000
271 A.D.2d 313 (N.Y. App. Div. 2000)
Case details for

Noriega v. State Street Bank Trust Co.

Case Details

Full title:OSCAR NORIEGA, Plaintiff-Respondent, v. STATE STREET BANK AND TRUST…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 18, 2000

Citations

271 A.D.2d 313 (N.Y. App. Div. 2000)
706 N.Y.S.2d 107

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