Opinion
665 Index No. 30981/19E Case No. 2022–03262
10-03-2023
Mark CASTANEDA, Plaintiff–Appellant, v. AMSTERCO 67, LLC, et al., Defendants, Premier Company et al., Defendants–Respondents. [And a Third–Party Action]
Pen~a & Kahn PLLC, Bronx (Jeffrey J. Schietzelt of counsel), for appellant. Perry Van Etten Rozanski & Kutner, LLP, New York (Steven Balson–Cohen of counsel), for Premier Company, respondent. Lewis Brisbois Bisgaard & Smith LLP, New York (Kristen A. Carroll of counsel), for Outsect Incorporated, respondent.
Pen~a & Kahn PLLC, Bronx (Jeffrey J. Schietzelt of counsel), for appellant.
Perry Van Etten Rozanski & Kutner, LLP, New York (Steven Balson–Cohen of counsel), for Premier Company, respondent.
Lewis Brisbois Bisgaard & Smith LLP, New York (Kristen A. Carroll of counsel), for Outsect Incorporated, respondent.
Kern, J.P., Moulton, Mendez, Higgitt, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 7, 2022, which denied plaintiff's motion for summary judgment as to liability on his Labor Law § 240(1) claim and granted defendants Premier Company's and Outsect Incorporated's cross-motions for summary judgment dismissing the Labor Law §§ 200, 240(1) and 241(6) claims as against them, unanimously modified, on the law, to deny Outsect's cross-motion to the extent it seeks summary judgment dismissing the Labor Law § 200 claim, and otherwise affirmed, without costs.
The court properly dismissed plaintiff's Labor Law § 240(1) claim because plaintiff was not engaged in a protected activity at the time of the accident. Plaintiff's work on a pest control project, which entailed attaching pigeon netting to anchors drilled into the fac¸ade of the building and setting up spikes on the building's ledges and windowsills, did not effect a "significant physical change to the configuration or composition of the building or structure" so as to constitute an "alteration" under the statute ( Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998] ; see also Mananghaya v. Bronx–Lebanon Hosp. Ctr., 165 A.D.3d 117, 124–126, 83 N.Y.S.3d 444 [1st Dept. 2018], lv dismissed 33 N.Y.3d 969, 100 N.Y.S.3d 213, 123 N.E.3d 872 [2019] ). Plaintiff's reaffixing of some of the anchors to reattach dislodged netting at the moment of injury, even if isolable from the larger project (see Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881–882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ), did not constitute covered "repair" work, as he was not repairing a part of a building or structure (see Labor Law § 240[1] ; Manente v. Ropost, Inc., 136 A.D.2d 681, 524 N.Y.S.2d 96 [2d Dept. 1988] ).
Because plaintiff was not engaged in construction work (see Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 102–103, 752 N.Y.S.2d 581, 782 N.E.2d 558 [2002] ; Joblon, 91 N.Y.2d at 466, 672 N.Y.S.2d 286, 695 N.E.2d 237 ), the Labor Law § 241(6) claim was also properly dismissed.
Outsect was not entitled to dismissal of the Labor Law § 200 claim, as it failed to establish as a matter of law that it did not have the ability to supervise or control plaintiff's work (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505–506, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ; Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144, 950 N.Y.S.2d 35 [1st Dept. 2012] ). That Maldonado independently retained plaintiff to assist him with the job does not foreclose the protection of the Labor Law statute because, having been permitted or suffered to perform the work, plaintiff was "within the special class for whose benefit liability is imposed upon contractors, owners and their agents" ( Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576–577, 561 N.Y.S.2d 892, 563 N.E.2d 263 [1990] ; see also Longo v. Metro–North Commuter R.R., 275 A.D.2d 238, 239–240, 712 N.Y.S.2d 531 [1st Dept. 2000] ). Defendants’ contention that plaintiff was the sole proximate cause of his accident is unavailing, in light of the differing accounts of how the accident occurred. The Labor Law § 200 claim as against Premier, however, was properly dismissed in the absence of evidence that it supervised or controlled the injury-producing work (see Ross, 81 N.Y.2d at 505–506, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; Cappabianca, 99 A.D.3d at 144, 950 N.Y.S.2d 35 ).