Opinion
2014-11-6
Jeffrey BLANCO, Plaintiff–Appellant, v. NBC TRUST NO. 1996A, etc., et al., Defendants–Respondents. NBC Trust No. 1996A, etc., et al., Third–Party Plaintiffs, v. Atlas–Acon Electric Service, Corp., Third–Party Defendant–Respondent.
Martin R. Munitz, P.C., New York (Martin R. Munitz of counsel), for appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia Raicus of counsel), for NBC Trust No. 1996, NBC Universal Inc., and Cross Consulting Inc., respondents.
Martin R. Munitz, P.C., New York (Martin R. Munitz of counsel), for appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia Raicus of counsel), for NBC Trust No. 1996, NBC Universal Inc., and Cross Consulting Inc., respondents.
Camacho Mauro Mulholland, LLP, New York (William E. Daks of counsel), for Atlas–Acon Electric Services, Corp., respondent.
MAZZARELLI, J.P., ACOSTA, DeGRASSE, CLARK, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 30, 2014, which, insofar as appealed from as limited by the briefs, granted those branches of the motion of defendants NBC Trust No. 1996A, NBC Universal Inc. and Cross Consulting, Inc., and the cross motion of third-party defendant Atlas–Acon Electric Service Corp., for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, unanimously reversed, on the law, without costs, those branches of the motion and cross motion denied, the section 240(1) claim and third-party complaint reinstated, and, upon a search of the record pursuant to CPLR 3212(b), partial summary judgment is awarded to plaintiff on the issue of liability on the Labor Law § 240(1) claim.
Dismissal of the Labor Law § 240(1) claim was improper in this action where plaintiff electrician was injured when, while in the course of replacing ballasts on 25 light fixtures, he fell when the A-frame ladder he was attempting to descend swayed. Plaintiff's work at the time of the accident was activity covered under the statute, as it was performed in the context of a larger renovation project on the premises and did not constitute routine maintenance work ( 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]; Hernandez v. Ten Ten Co., 31 A.D.3d 333, 819 N.Y.S.2d 42 [1st Dept.2006]; Fox v. H & M Hennes & Mauritz, L.P., 83 A.D.3d 889, 922 N.Y.S.2d 139 [2d Dept.2011]; compare Picaro v. New York Convention Ctr. Dev. Corp., 97 A.D.3d 511, 949 N.Y.S.2d 374 [1st Dept.2012] ). Given the undisputed evidence as to how the accident occurred, and absence of evidence showing that plaintiff was the sole proximate cause of the accident ( see Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16 [1st Dept.2002]; cf. Noble v. 260–261 Madison Ave., LLC, 100 A.D.3d 543, 954 N.Y.S.2d 518 [1st Dept.2012] ), we grant plaintiff partial summary judgment on the issue of liability based upon a search of the record ( see Montalvo v. J. Petrocelli Constr., Inc., 8 A.D.3d 173, 175–176, 780 N.Y.S.2d 558 [1st Dept. 2004]; CPLR 3212[b] ).