Summary
affirming in relevant part the denial of the defendant's summary judgment motion where the plaintiff, an elevator maintenance worker, was injured while repairing an elevator but the plaintiff's injuries were not caused "by the noise and vibration in the compensating elevator sheave that plaintiff was called upon to remedy, but by the absence of a pit shut-off switch"
Summary of this case from Fitje v. United StatesOpinion
August 20, 1998
Appeal from the Supreme Court, Bronx County (Luis Gonzalez, J.).
We reject appellants' claims that the owners bore no common-law responsibility for plaintiffs injuries caused by the dangerous condition he was called upon to repair, since the accident was caused not by the noise and vibration in the compensating elevator sheave that plaintiff was called upon to remedy, but by the absence of a pit shut-off switch (see, 9 NYCRR 1062.3 [d]; compare, Kowalsky v. Conreco Co., 264 N.Y. 125). We agree with the IAS Court that an issue of fact exists as to whether this particular building was required to have such a switch. However, it was error not to dismiss so much of the action as claims a violation of Labor Law § 241 Lab. (6), since plaintiff was not engaged in construction, excavation or demolition work at the time of the accident (see, Spiteri v. Chatwal Hotels, 247 A.D.2d 297, 299). We have considered appellants' other arguments and find them to be without merit.
Concur — Milonas, J. P., Wallach, Williams, Tom and Mazzarelli, JJ.