| Padovano v Teddy's Realty Assoc., Ltd. |
| 2008 NY Slip Op 08466 [56 AD3d 444] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Daniel Padovano et al., Appellants, v Teddy's RealtyAssociates, Ltd., Defendant, and 211 West Broadway Condominium et al., Respondents. (And aRelated Action.) |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Kimberly Fandreyand John M. Flannery of counsel), for respondents 211 West Broadway Condominium andAndrews Building Corp. Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], ofcounsel), for respondent Roberta Arena.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), datedOctober 24, 2006, as (1) granted those branches of the motion of the defendants 211 WestBroadway Condominium and Andrews Building Corp., and the separate motion of the defendantRoberta Arena, which were for summary judgment dismissing the Labor Law §§202 and 240 (1) causes of action insofar as asserted against them, (2) granted that branch of themotion of Roberta Arena which was for summary judgment dismissing the Labor Law §200 cause of action insofar as asserted against her, and (3) denied that branch of their crossmotion which was for summary judgment against those defendants on the Labor Law §240 (1) cause of action.[*2]
Ordered that the order is modified, on the law, (1) bydeleting the provision thereof granting those branches of the motion of the defendants 211 WestBroadway Condominium and Andrews Building Corp., and the separate motion of the defendantRoberta Arena, which were for summary judgment dismissing the Labor Law § 202 causeof action insofar as asserted against them, and substituting therefor a provision denying thosebranches of the motions, and (2) by deleting the provision thereof granting that branch of themotion of Roberta Arena which was for summary judgment dismissing the Labor Law §200 cause of action insofar as asserted against her, and substituting therefor a provision denyingthat branch of the motion; as so modified, the order is affirmed insofar as appealed from, withone bill of costs payable to the plaintiffs by the defendants appearing separately and filingseparate briefs.
The defendant Roberta Arena is the owner of a third-floor condominium apartment in amixed-use commercial/residential building owned by the defendant 211 West BroadwayCondominium (hereinafter 211 West Broadway) and managed by the defendant AndrewsBuilding Corp. (hereinafter Andrews). Arena hired the plaintiff Daniel Padovano and hiscoworker, both professional window washers, to clean the interior and exterior of the windows inher apartment. Padovano allegedly was injured in the course of such work when he fell out of thebottom of a double hung window to the ground below. The window at issue, custommanufactured by nonparty Pella, was approximately eight feet tall and three to four feet wide,and was located approximately 18 inches above the floor. The window was designed to permitthe lower section to tilt inward so that the exterior surface could be cleaned from inside.Apparently, the mechanism by which the window tilted inward for cleaning was atypical. At anexamination before trial, Padovano testified that Arena warned him that he had to be "very, verycareful" in operating the windows because they were "tricky." Further, he testified, she warnedhim that the window was "really hard to open halfway up or better" and that you "really had to hitthe window to get it out, to tilt it." According to Padovano, his accident occurred while he wassquatting with both feet on the windowsill trying to tilt the lower section of the window inwardfor cleaning. He testified that he had one hand on the bottom sash and the other hand on the topsash of the lower section of the window, and was using "medium" force to "jiggle" the window,when the bottom of the section suddenly came out of the track and went forward several inches,causing him to lose his balance and tumble out of the window. According to Padovano'scoworker, the lower section of the window was "cockeyed" and off its tracks after the fall.Padovano and his wife (asserting derivative claims) commenced this action, inter alia, to recoverdamages for violations of Labor Law §§ 200, 202 and § 240 (1). In the orderappealed from, the Supreme Court, inter alia, granted those branches of the motion of 211 WestBroadway and Andrews, and Arena's separate motion which were for summary judgmentdismissing the Labor Law §§ 202 and 240 (1) causes of action insofar as assertedagainst them, granted that branch of Arena's motion which was for summary judgmentdismissing the Labor Law § 200 cause of action insofar as asserted against her, and deniedthat branch of the plaintiffs' cross motion which was for summary judgment against thosedefendants on the Labor Law § 240 (1) cause of action. We modify.
Routine, household window washing, as occurred here, is not protected under Labor Law§ 240 (1) (see Broggy vRockefeller Group, Inc., 8 NY3d 675 [2007]; Brown v Christopher St. OwnersCorp., 87 NY2d 938 [1996]; Connors v Boorstein, 4 NY2d 172 [1958]). Since therespondents established their prima facie entitlement to judgment as a matter of law regarding theLabor Law § 240 (1) cause of action, and the plaintiffs failed to raise a triable issue of fact,the Supreme Court properly granted those branches of the motions which were for summaryjudgment dismissing that cause of action insofar [*3]as assertedagainst the respondents.
However, the Supreme Court erred in granting those branches of the respondents' motionswhich were for summary judgment dismissing the Labor Law § 202 cause of action insofaras asserted against them. In relevant part, Labor Law § 202 provides as follows: "Theowner, lessee, agent and manager of every public building and every contractor involved shallprovide such safe means for the cleaning of the widows [sic] and of exterior surfaces ofsuch building as may be required and approved by the [Industrial Board of Appeals]. The owner,lessee, agent, manager or superintendent of any such public building and every contractorinvolved shall not require, permit, suffer or allow any window or exterior surface of suchbuilding to be cleaned unless such means are provided to enable such work to be done in a safemanner for the prevention of accidents and for the protection of the public and of personsengaged in such work in conformity with the requirements of this chapter and the rules of the[Industrial Board of Appeals]." The rules promulgated by the Industrial Board of Appeals are setforth at 12 NYCRR part 21. One section, entitled "Defective windows and structures," provides:"(1) No owner shall suffer or permit a cleaner to clean any window installed in his building if anypart of such window or surrounding structures upon which the cleaner may depend for support isso defective, damaged or deteriorated as to affect its structural strength, or if any part of suchwindow which must be opened during cleaning cannot be operated easily." (12 NYCRR 21.3[d].) As currently amended, Labor Law § 202 is not limited to the cleaning of windowsfrom the outside, but encompasses the cleaning of the exterior of windows from the inside(see Sponsor's Mem, Bill Jacket, L 1970, ch 822; 2 NYCRR 21.5). Here, in support oftheir respective motions, neither 211 West Broadway, Andrews, nor Arena demonstrated, primafacie, that Labor Law § 202 and the rules promulgated thereunder were complied with.Rather, there is a triable issue of fact as to whether the window at issue was defective within themeaning of the rules, i.e., whether a part of the window that needed to be opened during cleaning(the lower section) could not be operated easily. Thus, the respondents are not entitled todismissal of the Labor Law § 202 cause of action.
We decline to reach Arena's argument, made for the first time on appeal, that she may not beheld liable under Labor Law § 202 for the additional reason that she is not the "owner" of a"public building" within the meaning of the statute (cf. Matter of Richardson v FiedlerRoofing, 67 NY2d 246 [1986]; Chambers v Old Stone Hill Rd. Assoc., 303 AD2d536 [2003]).
The Supreme Court also erred in awarding summary judgment to Arena dismissing the LaborLaw § 200 cause of action insofar as asserted against her. Where an injury arises from analleged dangerous and defective condition on property, the owner may be held liable for aviolation of Labor Law § 200 if the owner either created the dangerous condition thatcaused the accident or [*4]had actual or constructive notice of thedangerous condition (see Ortega v Puccia, 57 AD3d 54 [2008]; Azad v 270 5th RealtyCorp., 46 AD3d 728 [2007]; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 707 [2007]; Peay v New York City School Constr.Auth., 35 AD3d 566 [2006]; Kerins v Vassar Coll., 15 AD3d 623, 626 [2005]; Giambalvo vChemical Bank, 260 AD2d 432, 433 [1999]). Here, Arena failed to demonstrate, prima facie,that these factors were absent.
The parties' remaining contentions are without merit. Mastro, J.P., Ritter, Carni and Eng, JJ.,concur.