| Santiago v Fred-Doug 117, L.L.C. |
| 2009 NY Slip Op 09369 [68 AD3d 555] |
| December 17, 2009 |
| Appellate Division, First Department |
| Nelson Santiago et al., Respondents, v Fred-Doug 117,L.L.C., et al., Appellants. (And a Third-Party Action.) |
—[*1] Proner & Proner, New York (Tobi R. Salottolo of counsel), for respondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about March31, 2009, which, to the extent appealed from as limited by the brief, granted plaintiffs' motion forsummary judgment on the issue of liability under Labor Law § 240 (1) and denieddefendants' motion for summary judgment dismissing the Labor Law § 240 (1) cause ofaction, unanimously modified, on the law, to deny plaintiff's motion, and otherwise affirmed,without costs.
Labor Law § 240 (1) imposes a duty to protect workers engaged in "the erection,demolition, repairing, altering, painting, cleaning or pointing of a building or structure." While"repair" of a broken or malfunctioning item is among the statute's enumerated activities, "routinemaintenance" to prevent malfunction is not covered activity (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528[2003]; see Craft v Clark Trading Corp., 257 AD2d 886, 887 [1999]). Plaintiff testifiedthat he went to the Rite Aid pharmacy in response to a service call that the air conditioning wasbroken. The Rite Aid manager confirmed that he had called Concept, plaintiff's employer, tohave the air conditioning fixed because the front of the store was excessively hot. However, theConcept service manager testified that he had dispatched plaintiff to the Rite Aid that day tocomplete maintenance work begun three days earlier. A Concept work order and invoice alsoindicate that plaintiff was doing maintenance work, changing filters and belts, and cleaning coilson three HVAC units to prevent future problems. These discordant versions of the facts precludea determination, as a matter of law, as to whether plaintiff was doing covered repair work ornonactionable routine maintenance on the date of his accident.
Assuming a factfinder determines that plaintiff was involved in covered repair work, theevidence raises the further issue of whether plaintiff's own actions were the sole proximate causeof his injuries (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]; Lovall v Graves Bros., Inc., 63 AD3d1528, 1530 [2009]; Lopez v BovisLend Lease LMB, Inc., 26 AD3d 192 [2006]; Meade v Rock-McGraw, Inc.,307 AD2d 156 [2003]). Plaintiff testified that he was standing on an open eight-foot A-frameladder placed sideways and secured about a foot from an open door to the Rite Aid manager'soffice, and that the store manager [*2]bumped the ladder as hesqueezed past plaintiff to exit the office. Plaintiff stated that he fell off the ladder when it wasbumped a second time, and after falling, he saw that the manager had reentered his office. Incontrast, the store manager testified that he saw plaintiff lean a closed ladder against the wall,unsecured, that he warned plaintiff that this was not safe, and that plaintiff replied that he knewwhat he was doing. He also testified that while the ladder blocked the doorway to his office,there was enough space for him to get through. This testimony raises the factual issue of whetherplaintiff misused an otherwise adequate ladder by leaning it, unsecured, against the wall, afterwhich the ladder slipped as he was moving on top of it. Concur—Gonzalez, P.J., Saxe,McGuire, Acosta and RomÁn, JJ.