| Azad v 270 5th Realty Corp. |
| 2007 NY Slip Op 10086 [46 AD3d 728] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Abul Kaylam Azad et al., Respondents, v 270 5th RealtyCorp. et al., Appellants. |
—[*1] Drabkin & Margulies (Alexander J. Wulwick, New York, N.Y. of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Knipel, J.), dated March 14, 2007, which grantedthose branches of the plaintiffs' motion which were for summary judgment on the issue ofliability on their causes of action pursuant to Labor Law § 240 (1) and § 241 (6), anddenied their cross motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, those branches of the plaintiffs'motion which were for summary judgment on the issue of liability on their causes of actionpursuant to Labor Law § 240 (1) and § 241 (6) are denied and the defendants' crossmotion for summary judgment dismissing the complaint is granted.
The defendant 270 5th Realty Corp. (hereinafter Realty), the owner of an apartment buildingin Brooklyn, hired the plaintiff Abul Kaylam Azad to patch two holes in a gutter pipe, which asmall animal had used to burrow itself into the building. While inspecting the job site the dayprior to commencing work, Azad noticed that there were discarded food and garbage bagsscattered along the sidewalk adjacent to the apartment building. At that time, he asked thebuilding's superintendent to clear the sidewalk so that he could complete the job safely. WhenAzad returned the following day, the garbage was still on the sidewalk. He contacted thesuperintendent, who told him he would be there shortly. Nonetheless, after 30 minutes hadpassed and the superintendent had [*2]not arrived, Azad beganworking. In order to reach the holes in the gutter pipe, Azad placed the base of an extensionladder on top of some of the garbage covering the adjacent sidewalk and leaned the top end of theladder against a fire escape ladder attached to the building. Standing 30 to 35 feet above groundwith no one holding the extension ladder and nothing securing it, he completed his task byscrewing metal sheets over the six-inch by six-inch holes, sealing the sheets with caulk, and thenpainting over them. After he had completed his work, Azad was descending the extension ladderwhen it shifted to the left, causing him to fall to the ground.
Initially, the Supreme Court should have granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the complaint insofar as asserted against theindividual defendants Barry Lipsitz and Harriet Lipsitz, as those individuals were joined asdefendants solely by virtue of their status as shareholders and officers of Realty, and there is nobasis to pierce the corporate veil (see Matter of Morris v New York State Dept. of Taxation &Fin., 82 NY2d 135, 142 [1993]; Kok Choy Yeen v NWE Corp., 37 AD3d 547, 549-550 [2007];Collins v Studer, 299 AD2d 386, 387 [2002]).
In addition, the Supreme Court should have granted that branch of the defendants' crossmotion which was for summary judgment dismissing the cause of action alleging a violation ofLabor Law § 240 (1) insofar as asserted against Realty. That statute affords protection tothose workers engaged in "erection, demolition, repairing, altering, painting, cleaning or pointingof a building or structure." Here, Realty established its prima facie entitlement to judgment as amatter of law on this cause of action by demonstrating that Azad was not engaged in any of theactivities protected by Labor Law § 240 (1), but rather, was merely performing "routinemaintenance" (see Esposito v New YorkCity Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; Cullen v Uptown Stor. Co.,268 AD2d 327 [2000]; Czaska v Lenn Lease, 251 AD2d 965, 966 [1998]). The task didnot involve major structural work, and Azad's attachment of metal sheets over the holes in thegutter pipe was in the nature of component replacement (see Chizh v Hillside Campus Meadows Assoc., LLC, 3 NY3d 664,665 [2004]; Anderson v Olympia &York Tower B Co., 14 AD3d 520, 521 [2005]; DiBenedetto v Port Auth. of N.Y. &N.J., 293 AD2d 399 [2002]; Jehle v Adams Hotel Assoc., 264 AD2d 354, 355[1999]). Moreover, Azad was not retained to repair the gutter pipe because it was inoperable, butbecause an animal had used the holes in the pipe, which had developed in the course of normalwear and tear, to enter the building (seeCordero v SL Green Realty Corp., 38 AD3d 202 [2007]; Kirk v Outokumpu Am. Brass, Inc., 33AD3d 1136, 1138 [2006]; Goad v Southern Elec. Intl., 263 AD2d 654, 655 [1999]).In opposition to the defendants' showing in this regard, the plaintiffs failed to raise a triable issueof fact.
The Supreme Court also should have granted that branch of the defendants' cross motionwhich was for summary judgment dismissing the cause of action alleging a violation of LaborLaw § 241 (6) insofar as asserted against Realty, since they established their prima facieentitlement to judgment as a matter of law on that cause of action by proof that Azad's accidentdid not occur while performing "construction, excavation, or demolition" work (see Nagel vD & R Realty Corp., 99 NY2d 98, 101-103 [2002]; Cordero v SL Green RealtyCorp., 38 AD3d at 202; Martinez vMorris Ave. Equities, 30 AD3d 264 [2006]; Barbarito v County of Tompkins, 22 AD3d 937, 940 [2005];DiBenedetto v Port Auth. of N.Y. & N.J., 293 AD2d at 399).
We note that the plaintiffs' brief does not respond to the arguments raised by the appellantswith respect to the viability of the Labor Law § 200 cause of action or the common-lawnegligence cause of action. As the appellants correctly argue, and the plaintiffs' counsel concededat oral argument, such causes of action were not viable. Labor Law § 200 is a codificationof the [*3]common-law duty to provide workers with a safe workenvironment (see Brown v Brause Plaza,LLC, 19 AD3d 626, 628 [2005]; Everitt v Nozkowski, 285 AD2d 442, 443[2001]). Where a plaintiff's injuries stem not from the manner in which the work was beingperformed, but, rather, from a dangerous condition on the premises, an owner may be held liablein common-law negligence and under Labor Law § 200 if it had control over the work siteand either created the dangerous condition that caused the accident or had actual or constructivenotice of the dangerous condition that caused the accident (see Keating v Nanuet Bd. of Educ., 40 AD3d 706, 707 [2007]; cf. Scoppettone v ADJ Holding Corp.,41 AD3d 693, 694 [2007]).
Here, where the plaintiffs allege that Azad's injuries arose from a dangerous condition at thepremises, Realty satisfied its prima facie burden establishing its entitlement to judgment as amatter of law in this regard by, inter alia, demonstrating that Azad purposefully placed the ladderon the very debris he claims caused the ladder to slip and that Azad's negligent placement of theladder was the sole cause of the accident. In opposition, the plaintiffs' proof failed to raise anissue of fact. The plaintiffs failed to adequately explain why the minimal debris in question couldnot be moved in such a manner as to enable Azad to safely place the ladder on the sidewalk orwhy the ladder could not otherwise be properly and safely placed. Therefore, in this instance, thepresence of the debris, whether or not it constituted a dangerous condition, was not the proximatecause of the accident. Accordingly, the Supreme Court should have granted that branch of thedefendants' cross motion which was for summary judgment dismissing the causes of actionalleging common-law negligence and a violation of Labor Law § 200 insofar as assertedagainst Realty. Miller, J.P., Lifson, Angiolillo and McCarthy, JJ., concur.