Opinion
642 CA 18–02148
07-05-2019
James M. ALLYN, Plaintiff–Appellant, v. FIRST CLASS SIDING, INC., Jeffrey Biscaro, Individually and Doing Business as First Class Roofing Specialists and Doing Business as First Class Exteriors and Doing Business as First Class Windows, and Kathleen M. Rippel, Individually and Doing Business as First Class Exteriors, Defendants–Respondents.
LEARNED, REILLY, LEARNED & HUGHES, LLP, ELMIRA (MATTHEW C. GAGLIARO OF COUNSEL), FOR PLAINTIFF–APPELLANT. BRYAN J. MAGGS LAW OFFICES, PLLC, ELMIRA (BRYAN J. MAGGS OF COUNSEL, Elmira), FOR DEFENDANTS–RESPONDENTS.
LEARNED, REILLY, LEARNED & HUGHES, LLP, ELMIRA (MATTHEW C. GAGLIARO OF COUNSEL), FOR PLAINTIFF–APPELLANT.
BRYAN J. MAGGS LAW OFFICES, PLLC, ELMIRA (BRYAN J. MAGGS OF COUNSEL, Elmira), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, an employee of a roofing supplier, commenced this action to recover damages for injuries that he sustained in a forklift accident that occurred while he was delivering supplies to a prospective worksite four days before any construction work began. First Class Siding, Inc. (defendant), the contractor that bought the supplies and was to perform the work, was not yet present on the site when the accident occurred. On appeal, plaintiff contends that Supreme Court erred in granting that part of defendants' motion for summary judgment seeking dismissal of the Labor Law § 240(1) claim against defendant. We affirm. Defendants met their initial burden on the motion with respect to the Labor Law § 240(1) claim against defendant by establishing that plaintiff was not " ‘hired to take any part in the repair work’ " ( Bagshaw v. Network Serv. Mgt. , 4 A.D.3d 831, 832, 772 N.Y.S.2d 161 [4th Dept. 2004] ; see generally § 240[1] ). More particularly, the activity in which plaintiff was engaged was not " ‘performed during ’ " the repair of a structure, nor was it " ‘ancillary’ to ... ongoing renovation work" ( Foots v. Consolidated Bldg. Contrs., Inc. , 119 A.D.3d 1324, 1325–1326, 989 N.Y.S.2d 723 [4th Dept. 2014] ; see generally Prats v. Port Auth. of N.Y. & N.J. , 100 N.Y.2d 878, 881, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ). In opposition, plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).