| Juchniewicz v Merex Food Corp. |
| 2007 NY Slip Op 09732 [46 AD3d 623] |
| December 11, 2007 |
| Appellate Division, Second Department |
| David Juchniewicz et al.,Respondents-Appellants, v Merex Food Corporation et al., Appellants-Respondents, etal., Defendants. Fremont Compensation Insurance Group,Intervenor-Respondent-Appellant. |
—[*1] Goldberg Segalla LLP, White Plains, N.Y. (William G. Kelly and Matthew S. Lerner ofcounsel), for appellant-respondent Lester N. Entin Associates/Danstan Properties. Bloom & Noll, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaacand Michael H. Zhu] of counsel), for plaintiffs-respondents-appellants. Barry, McTiernan & Wedinger, Staten Island, N.Y. (Laurel A. Wedinger of counsel), forintervenor defendant-respondent-appellant.
In an action to recover damages for personal injuries, etc., the defendants Merex FoodCorporation and Lester N. Entin Associates/Danstan Properties separately appeal from so muchof an order of the Supreme Court, Westchester County (Smith, J.), dated September 22, 2006, asgranted the plaintiffs' motion for partial summary judgment on the issue of liability on the causeof action alleging a violation of Labor Law § 240 (1) and denied that branch of their crossmotion which was for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against them, and the plaintiffs cross-appeal, andthe intervenor defendant separately cross-appeals, as limited by its brief, from so much of thesame order as granted those branches of the cross motion of the defendants Merex FoodCorporation and Lester N. Entin Associates/Danstan Properties which were for summaryjudgment dismissing the causes of action [*2]allegingcommon-law negligence and violations of Labor Law §§ 200 and 241 (6) insofar asasserted against those defendants.
Ordered that the cross appeal by the intervenor defendant is dismissed as it is not aggrievedby the portion of the order cross-appealed from (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the cross motion of the defendants Merex Food Corporation and Lester N.Entin Associates/Danstan Properties which were for summary judgment dismissing the causes ofaction alleging common-law negligence and a violation of Labor Law § 200 insofar asasserted against the defendant Merex Food Corporation and substituting therefor provisionsdenying those branches of the cross motion; as so modified, the order is affirmed insofar asappealed from and insofar as cross-appealed from by the plaintiffs, with one bill of costs to theplaintiffs payable by the defendant Merex Food Corporation.
The Supreme Court properly granted the plaintiffs' motion for summary judgment on theissue of liability on the cause of action alleging a violation of Labor Law § 240 (1). Section240 (1) applies where an employee is engaged "in the erection, demolition, repairing, altering,painting, cleaning or pointing of a building or structure" (Labor Law § 240 [1]). Thedeposition testimony, invoices, and work orders submitted by the plaintiffs in support of theirmotion established that the injured plaintiff and another refrigeration technician were sent to therefrigerated warehouse of the defendant Merex Food Corporation (hereinafter Merex) in responseto an emergency call regarding a refrigeration system malfunction that ultimately took 29½hours to repair, and that the work involved, inter alia, rewiring, installing a "tattletale relay," andreplacing a standard thermostat with a digital electronic thermostat. We agree with the SupremeCourt that, under these circumstances, the work in which the plaintiff was engaged at the time ofhis accident constituted "repair" for the purposes of Labor Law § 240 (1) (see Prats vPort Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]; Lofaso v J.P. Murphy Assoc., 37 AD3d 769, 771 [2007]; Fullerv NC3, Inc., 256 AD2d 1126, 1127 [1998]; Sprague v Peckham Materials Corp., 240AD2d 392, 393 [1997]; Shapiro v ACG Equity Assoc., 233 AD2d 857 [1996]; Purdiev Crestwood Lake Hgts. Section 4 Corp., 229 AD2d 523, 525 [1996]).
In opposition, Merex and the defendant Lester N. Entin Associates/Danstan Properties(hereinafter Danstan) failed to raise a triable issue of fact as to whether there had been a statutoryviolation or whether the injured plaintiff's own conduct was the sole proximate cause of theaccident (see Blake v NeighborhoodHous. Servs. of N.Y. City, 1 NY3d 280, 289-290 [2003]; Salazar v United Rentals, Inc., 41AD3d 684, 684-685 [2007]).
Additionally, the Supreme Court properly granted that branch of the cross motion of Merexand Danstan which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 241 (6). At the outset, while the plaintiffs correctly argue that the injuredplaintiff was engaged in construction work, as defined under the Industrial Code (see 12NYCRR 23-1.4 [b] [13]; Joblon v Solow, 91 NY2d 457, 466 [1998]; Sprague vPeckham Materials Corp., 240 AD2d at 394; Shapiro v ACG Equity Assoc., 233AD2d at 857), they also alleged that Merex and Danstan violated 12 NYCRR 23-1.21 (b) (1), (3)of the Industrial Code, which requires that "[a]ll ladders shall be maintained in good condition. Aladder shall not be used if . . . it has a broken member or part [;] . . .any insecure joints between members or parts [;] . . . any wooden rung or step thatis worn down to three-quarters or less of its original thickness [;] [or] . . . any flawor defect of material that may cause ladder failure." Merex and Danstan established theirentitlement to summary judgment by [*3]submitting the injuredplaintiff's own deposition testimony that he lost his balance because of the presence of a steelobject that interfered with his grabbing hold of the next rung on the ladder, not because theladder, which all agree was anchored to the wall, moved or gave way. Thus, Merex and Danstanshowed, as a matter of law, that the alleged Industrial Code violation did not proximately causethe accident (see Cunningham vAlexander's King Plaza, LLC, 22 AD3d 703, 706, 706-707 [2005]). In opposition, theplaintiffs failed to raise a triable issue of fact.
Further, while the court correctly granted that branch of the cross motion of Merex andDanstan which was for summary judgment dismissing the causes of action alleging common-lawnegligence and a violation of Labor Law § 200 insofar as asserted against Danstan, theout-of-possession owner of the premises where the accident occurred (see Ingargiola v Waheguru Mgt., 5AD3d 732, 733 [2004]; Tobias v DiFazio Elec., 288 AD2d 209, 209-210 [2001];Urbano v Plaza Materials Corp., 262 AD2d 307, 308 [1999]; Lafleur v Power TestRealty Co. Ltd. Partnership, 159 AD2d 691, 691-692 [1990]), it erred in granting that branchof the cross motion which was for summary judgment dismissing those causes of action insofaras asserted against Merex, the lessee in possession of the premises at the time of the accident.Here, Merex and Danstan failed to establish, as a matter of law, that Merex did not create thedefect, nor did they establish that Merex lacked sufficient supervision and control over the worksite such that it could not be held liable for the alleged violation of Labor Law § 200 andcommon-law negligence (see Fernez vKellogg, 2 AD3d 397, 399 [2003]; Lehner v Dormitory Auth. of State of N.Y.,221 AD2d 958, 959 [1995]). Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.