Summary
finding that the replacement of a torn window screen is neither "altering" nor "repairing" under Labor Law 240
Summary of this case from Soriano v. St. Mary's Indian Orthodox Church of Rockland Inc.Opinion
Decided August 31, 2004.
Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered February 11, 2004. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), which had granted defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim and had denied plaintiff's cross-motion for summary judgment.
Chizh v. Hillside Campus Meadows Assoc., LLC, 4 AD3d 743, affirmed.
Lewis Lewis, P.C., Buffalo ( Emily L. Downing and Richard P. Amico of counsel), for appellant.
Law Offices of John Quackenbush, Buffalo ( John Wallace of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
Unlike the situation in Prats v. Port Auth. of N.Y. N.J. ( 100 NY2d 878), here plaintiff was replacing a torn window screen at the time of his injury, an activity that constituted "routine maintenance" rather than "repair" or "alteration" of a building or structure ( see Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526; see also Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed, with costs, in a memorandum.