Opinion
May 4, 1999
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
Plaintiff was injured as he descended the building's fire escape after a cleaning of the restaurant's roof-top exhaust system. We agree with the IAS Court that plaintiff has a cause of action against the restaurant under Labor Law § 240 Lab.(1), which encompasses the routine cleaning of a building (see, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327; Buendia v. New York Natl. Bank, 223 A.D.2d 456, lv denied 91 N.Y.2d 812), in view of the evidence that an employee of the restaurant directed plaintiff to use the fire escape to gain access to the roof (see, Kirchner v. BRC Human Servs. Corp., 224 A.D.2d 270). However, we disagree with the IAS Court that plaintiff has a cause of action against the restaurant under Labor Law § 202 Lab., which by its terms protects the cleaning of only windows and exterior surfaces. We also find that plaintiff does not have, a cause of action against the restaurant for negligence, since the record demonstrates that the duty to maintain the fire escape was with the building owner, not the restaurant, and that the restaurant did not have actual or constructive notice of the allegedly defective fire escape step. There is no merit to the restaurant's argument that the third-party complaint should be dismissed as against it pursuant to CPLR 3215 (see, Multari v. Glalin Arms Corp., 28 A.D.2d 122, 124, appeal dismissed 23 N.Y.2d 740).
Concur — Ellerin, P. J., Williams, Mazzarelli and Buckley, JJ.