Opinion
2013-11-27
Elvis SOBENIS, respondent, v. HARRIDGE HOUSE ASSOCIATES OF 1984, defendant, 225 East 57th Street Owners Corp., et al., appellants.
Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for appellants. Donald M. Zolin (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for appellants. Donald M. Zolin (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for respondent.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the defendants 225 East 57th Street Owners Corp. and Wallack Management, Inc., appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated September 6, 2012, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the motion is granted.
The plaintiff was working on an air conditioning system in a building when he fell off of a ladder and sustained personal injuries. The plaintiff thereafter commenced an action against, among others, 225 East 57th Street Owners Corp., the owner of the building, and Wallack Management, Inc., the manager of the building (hereinafter together the appellants), alleging a violation of Labor Law § 240(1) and common-law negligence. The appellants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motion.
The appellants demonstrated their prima facie entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1) by showing that the plaintiff's work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building within the meaning of Labor Law § 240(1) so as to bring him within the protective ambit of that statute ( seeLabor Law § 240[1]; 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; Garcia–Rosales v. Bais Rochel Resort, 100 A.D.3d 687, 954 N.Y.S.2d 148). Rather, the appellants established that the plaintiff was performing annual servicing of the air conditioning system, done after the end of every cooling season, to ensure that the system continued to function effectively, and thus, that he was engaged merely in routine maintenance ( see Garcia–Rosales v. Bais Rochel Resort, 100 A.D.3d at 687, 954 N.Y.S.2d 148; Pound v. A.V.R. Realty Corp., 271 A.D.2d 424, 706 N.Y.S.2d 886; see generally 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). The plaintiff failed to raise a triable issue of fact in opposition. Accordingly, the Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against them.
The appellants also established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence by demonstrating that the plaintiff's accident was caused by the means and methods of his work, that his work was directed and controlled by his employer, and that they had no authority to exercise supervisory control over his work ( see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877–878, 609 N.Y.S.2d 168, 631 N.E.2d 110; Opalinski v. City of New York, 110 A.D.3d 694, 972 N.Y.S.2d 320 [2d Dept.2013]; Koat v. Consolidated Edison of N.Y., Inc., 98 A.D.3d 474, 475–476, 949 N.Y.S.2d 699; Robinson v. County of Nassau, 84 A.D.3d 919, 920, 923 N.Y.S.2d 135). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against them.