Opinion
October 21, 1999
Brian J. Isaac for Plaintiff-Appellant.
C. Raymond Nelson and Susan A. Romano for Defendants-Respondents.
C. Raymond Nelson for Third-Party Plaintiffs-Respondents.
Ava R. Maynard for Third-Party Defendants-Respondents.
SULLIVAN, J.P., NARDELLI, WALLACH, ANDRIAS, BUCKLEY, JJ.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about May 1, 1998, which, inter alia, granted defendants' motions for summary judgment dismissing plaintiff's Labor Law § 240 Lab.(1) cause of action, unanimously affirmed, without costs.
Plaintiff fell while stepping several feet down from the "crosshead" beam atop the roof of an elevator, to the top of a machine located on the elevator roof. Accepting, arguendo, plaintiff's argument that the crosshead functioned as a scaffold above the surface of the roof, this would not constitute the type of gravity-related accident covered by Labor Law § 240 Lab.(1) (see,Nieves v. Five Boro Air Conditioning Refrigeration Corp., 93 N.Y.2d 914;Fulton v. Northland Assocs., Inc., 248 A.D.2d 1020). Moreover, to the extent the elevator roof functioned as a scaffold for work being performed on the counterweight rollers, the crosshead was a part of it, and accordingly plaintiff's fall was onto, and not from or through, the scaffold (see, Bonaparte v. Niagara Mohawk Power Corp., 188 A.D.2d 853, appeal dismissed 81 N.Y.2d 1067).
Plaintiff's Labor Law § 240 Lab.(1) cause of action was properly dismissed for the additional reason that he was not "repairing" the building at the time of his accident. Plaintiff's replacement of the roller guards on the elevator counterweights cannot be viewed as a "repair" since plaintiff presented no evidence that the elevator was "inoperable or malfunctioning prior to the commencement of the work" (Craft v. Clark Trading Corp., ___ A.D.2d ___, 684 N.Y.S.2d 48, 49).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.