| Deoki v Abner Props. Co. |
| 2008 NY Slip Op 01297 [48 AD3d 510] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Parbhu Deoki, Appellant, v Abner Properties Co.,Respondent. |
—[*1] Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Gail L. Ritzert of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated March26, 2007, as, in effect, denied his motion for summary judgment on the issue of liability on thecause of action pursuant to Labor Law § 240 (1), and granted those branches of thedefendant's cross motion which were for summary judgment dismissing the causes of actionpursuant to Labor Law § 240 (1) and § 241 (6).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly sustained injuries when he fell from a ladder that bent beneath himwhile he was replacing a ballast in a fluorescent light fixture in a building leased by his employerfrom the defendant Abner Properties Co.
The Supreme Court correctly, in effect, denied the plaintiff's motion for summary judgmenton the issue of liability on the cause of action pursuant to Labor Law § 240 (1) and grantedthat branch of the defendant's cross motion which was for summary judgment dismissing thatcause of action, as the defendant established its prima facie entitlement to judgment as a matterof law. In opposition, the plaintiff failed to raise a triable issue of fact. The task of replacing aballast in a fluorescent light fixture falls within the category of routine maintenance (seeSanacore v Solla, 284 AD2d 321 [2001]). The plaintiff's work involved the replacement of aworn-out component in a nonconstruction and nonrenovation context and did not constituteerection, demolition, repairing, [*2]altering, painting, cleaning, orpointing of a building within the meaning of Labor Law § 240 (1) so as to bring himwithin the protective ambit of that statute (see Gleason v Gottlieb, 35 AD3d 355, 356 [2006]; Anderson v Olympia & York Tower B Co.,14 AD3d 520, 521 [2005]; Jani v City of New York, 284 AD2d 304 [2001]).The case of Eisenstein v Board of Mgrs.of Oaks at La Tourette Condominium Sections I-IV (43 AD3d 987 [2007]), isdistinguishable from the instant case in that Eisenstein involved the repair of a lightingfixture rather than routine maintenance.
Moreover, the Supreme Court did not err in awarding summary judgment to the defendantdismissing the plaintiff's Labor Law § 241 (6) cause of action, as the defendant alsoestablished its entitlement to judgment as a matter of law and, in opposition, the plaintiff failed toraise a triable issue of fact. There can be no recovery since the plaintiff's work constitutedmaintenance which was unrelated to construction, excavation, or demolition (see Esposito v New York City Indus. Dev.Agency, 1 NY3d 526, 528 [2003]; Nagel v D & R Realty Corp., 99 NY2d 98,102 [2002]; Acosta v Banco Popular, 308 AD2d 48, 51 [2003]; Goad v SouthernElec. Intl., 304 AD2d 887, 888 [2003]).
In light of our determination, the plaintiff's remaining contentions, including but not limitedto the allegation that Industrial Code § 23-1.21 (12 NYCRR 23-1.21) was violated, havebeen rendered academic. Rivera, J.P., Ritter, Dillon and Carni, JJ., concur.