| Garcia-Rosales v Bais Rochel Resort |
| 2012 NY Slip Op 07623 [100 AD3d 687] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Ernesto Garcia-Rosales, Appellant, v Bais Rochel Resort etal., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Glen Feinberg andRichard E. Lerner of counsel), for respondents.
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, Orange County (Bartlett, J.), dated June22, 2011, as granted those branches of the defendants' motion which were for summary judgmentdismissing the causes of action alleging violations of Labor Law §§ 240 (1) and 241(6), and denied his cross motion for summary judgment on the issue of liability on those causesof action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action alleging violations of Labor Law § 240 (1) by showing thatthe plaintiff's accident did not occur while he was engaged in an activity enumerated in LaborLaw § 240 (1), but rather, occurred while he was performing routine maintenance (see Owens v City of New York, 72AD3d 775 [2010]; Thompson v1701 Corp., 51 AD3d 904 [2008]; Azad v 270 5th Realty Corp., 46 AD3d 728 [2007]).
The plaintiff failed to raise a triable issue of fact in opposition to that branch of thedefendants' motion. The correction sheet attached to the plaintiff's deposition transcript presentedfeigned issues of fact tailored to avoid the consequences of his earlier deposition testimony, andwas, therefore, insufficient to raise a triable issue of fact (see Thompson v Commack Multiplex Cinemas, 83 AD3d 929[2011]; Smith v Costco WholesaleCorp., 50 AD3d 499 [2008]; Guevara v Zaharakis, 303 AD2d 555 [2003]). Thecorrection sheet contained no statement of reasons for making the corrections (see CPLR3116 [a]; Shell v Kone El. Co., 90AD3d 890 [2011]; Thompson v Commack Multiplex Cinemas, 83 AD3d at 930;Smith v Costco Wholesale Corp., 50 AD3d at 501; Dima v Morrow St. Assoc., LLC, 31 AD3d 697 [2006]). Theplaintiff's affidavit also presented feigned issues of fact designed to avoid the consequences ofhis earlier deposition testimony, and was likewise insufficient to raise a triable issue of fact (see Vela v Tower Ins. Co. of N.Y., 83AD3d 1050 [2011]; Blochl v RTLong Is. Franchise, LLC, 70 AD3d 993 [2010]; Goberdhan v Waldbaum'sSupermarket, 295 AD2d 564 [2002]; Bloom v La Femme Fatale of [*2]Smithtown, 273 AD2d 187 [2000]). Therefore, the SupremeCourt properly granted that branch of the defendants' motion which was for summary judgmentdismissing the cause of action alleging violations of Labor Law § 240 (1), and properlydenied that branch of the plaintiff's cross motion which was for summary judgment on the issueof liability on that cause of action.
The defendants also established their prima facie entitlement to judgment as a matter of lawdismissing the cause of action alleging violations of Labor Law § 241 (6). The defendantsestablished, prima facie, that the work being performed by the plaintiff at the time of the accidentwas not connected to construction, excavation, or demolition work, as defined in the IndustrialCode (see 12 NYCRR 23-1.4 [b] [13], [16], [19]). Routine maintenance is not within theambit of Labor Law § 241 (6) (see Peluso v 69 Tiemann Owners Corp., 301 AD2d360 [2003]). Therefore, Labor Law § 241 (6) is inapplicable (see Esposito v New York City Indus. Dev.Agency, 1 NY3d 526 [2003]; Nagel v D & R Realty Corp., 99 NY2d 98, 102[2002]; Gallello v MARJ Distribs.,Inc., 50 AD3d 734 [2008]; Wein v Amato Props., LLC, 30 AD3d 506 [2006]).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the work he wasperforming at the time of the accident came within the ambit of Labor Law § 241 (6).Therefore, the Supreme Court properly granted that branch of the defendants' motion which wasfor summary judgment dismissing the cause of action alleging violations of Labor Law §241 (6), and properly denied that branch of the plaintiff's cross motion which was for summaryjudgment on the issue of liability on that cause of action.
In light of our determination, we need not reach the plaintiff's remaining contentions. Florio,J.P., Dickerson, Sgroi and Miller, JJ., concur.