Opinion
No. 1618 Index No. 150464/19 No. 2023-02575
02-08-2024
Dan Rodriguez, Plaintiff-Appellant, v. Fawn East Fourth Street LLC, et al., Defendants-Respondents.
Liakas Law, P.C., New York (Anthony M. Deliso of counsel), for appellant. Cartafalsa, Turpin & Lenoff, New York (Marjorie M. McAteer of counsel), for respondents.
Liakas Law, P.C., New York (Anthony M. Deliso of counsel), for appellant.
Cartafalsa, Turpin & Lenoff, New York (Marjorie M. McAteer of counsel), for respondents.
Before: Oing, J.P., González, Shulman, Pitt-Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about January 31, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and granted defendants' motion for summary judgment dismissing the complaint against them, unanimously modified, on the law, to deny defendants' motion as to the Labor Law § 240(1) claim, and otherwise affirmed, without costs.
Plaintiff's evidence in the form of deposition testimony and documents submitted by defendants in opposition to plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, as well as documentary evidence authenticated by defendant property manager at their deposition, raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance (see generally Saint v Syracuse Supply Co., 25 N.Y.3d 117, 126 [2015]; Montalvo v New York & Presbyt. Hosp., 82 A.D.3d 580, 581 [1st Dept 2011]; see also Roth v Lenox Terrace Assoc., 146 A.D.3d 608 [1st Dept 2017]). Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater's breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater's failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against (see Runner v New York Stock Exch., Inc., 13 N.Y.3d 599 [2009]; Rivas v Seward Park Hous. Corp., 219 A.D.3d 59 [1st Dept 2023]).
Plaintiff's Labor Law § 241(6) claim was correctly dismissed. Plaintiff has not offered evidence that would support a basis to find a violation of a specific applicable Industrial Code provision, or that a violation, if any, had proximately caused his injury (see generally Montalvo v J. Petrocelli Constr., Inc., 8 A.D.3d 173, 176 [1st Dept 2004]).