| Parente v 277 Park Ave. LLC |
| 2009 NY Slip Op 05265 [63 AD3d 613] |
| June 25, 2009 |
| Appellate Division, First Department |
| Dennis Parente et al., Appellants, v 277 Park Avenue LLCet al., Respondents. JP Morgan Chase, Third-Party Plaintiff-Respondent, v Cushman &Wakefield, Inc., Third-Party Defendant-Respondent. |
—[*1] Russo, Keane & Toner, LLP, New York (Kevin G. Horbatiuk of counsel), for 277 ParkAvenue LLC, 277 Park Avenue Condominium and JP Morgan Chase, respondents. Fidelman & McGaw, Jericho (Ross P. Masler of counsel) for Cushman & Wakefield, Inc.,respondent.
Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered May 30,2008, which denied plaintiffs' motion for partial summary judgment on their Labor Law §240 (1) claim, granted defendants' cross motion for summary judgment dismissing the complaint,and granted third-party defendant's motion for summary judgment dismissing the third-partyaction, unanimously modified, on the law, defendants' cross motions for summary judgmentdismissing the section 240 (1) cause of action denied, plaintiffs' motion granted, and the motionto dismiss the third-party complaint denied, and otherwise affirmed, without costs.
Plaintiff Dennis Parente, an operating engineer employed by third-party defendant, wasallegedly injured on a Saturday when he fell off a ladder he had placed on a desktop in an officeleased by defendant Chase, while inspecting a malfunctioning booster fan over the desk. Hissupervisor, also employed by third-party defendant, testified that the building management hadreported the malfunction, and this was considered an emergency because high temperatures inthe office could damage the tenant's computers.
Labor Law § 240 (1) imposes absolute liability on owners, contractors and their agentsfor injuries to workers engaged in the repairing of a building or structure that results from fallsfrom ladders or other similar devices that do not provide the intended protection against suchfalls (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 [2002]). It doesnot, however, apply [*2]to routine maintenance that is notperformed in the context of construction or renovation. Replacement of parts that routinely wearout is considered maintenance, outside the purview of this section (see Prats v Port Auth. ofN.Y. & N.J., 100 NY2d 878, 882 [2003]). Where something has gone awry, however,requiring repair, section 240 (1) is applicable (see Caraciolo v 800 Second Ave.Condominium, 294 AD2d 200, 201-202 [2002]; Franco v Jemal, 280 AD2d 409[2001]).
No evidence was presented that the cause of the booster fan's malfunction was wear and tearon the power box motor and that only routine maintenance was required to fix the booster fan.Although the injured plaintiff stated this was sometimes a problem, neither he nor his supervisoractually knew the reason for the fan's breakdown, so he went to work on this particular weekendto investigate. An employee of the tenant testified that booster fans did not break down on aregular basis. Thus, plaintiff was not engaged in routine maintenance when he fell. Instead, hewas attempting to repair a broken fan by first ascertaining the cause of the breakdown.
Defendants and third-party defendant failed to raise a triable issue of fact as to the allegationthat plaintiff was the sole proximate cause of the accident. In these circumstances, plaintiffshould have been granted summary judgment as to liability on the Labor Law § 240 (1)cause of action.
However, the court properly dismissed plaintiffs' claim under Labor Law § 241 (6)(see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]), as wellas under Labor Law § 200 and common-law negligence (see Comes v New York StateElec. & Gas Corp., 82 NY2d 876, 877 [1993]), since no construction was being performedon the floor where the accident occurred.
As to the third-party action for indemnification, we find triable issues of fact concerningthird-party defendant's coverage under the tenant's insurance policy and the applicability ofcertain exclusions. Concur—Mazzarelli, J.P., Andrias, DeGrasse and Abdus-Salaam, JJ.[See 2008 NY Slip Op 31457(U).]