Opinion
9440 Index 23906/15E
05-28-2019
Felix COLON, Plaintiff–Appellant, v. THIRD AVENUE OPEN MRI, INC., et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Gerard Benvenuto of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Gerard Benvenuto of counsel), for respondents.
Sweeny, J.P., Richter, Kapnick, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered June 21, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and granted defendants' cross motion for summary judgment dismissing the claim, unanimously affirmed, without costs.
Plaintiff, who occasionally worked as a handyman for defendants, was injured when he fell from a six-foot A-frame ladder which he was climbing to fix a leak from the ceiling in defendant's x-ray room. Plaintiff surmised that the leak was coming from the joint of a cast iron drain pipe in the ceiling, and that he could tighten the clamps with a screwdriver that he had on his person. Defendant's principal testified that the leak eventually stopped on its own, and he ultimately learned that the source of the leak was a spill from the apartment above, and not an issue with the plumbing system at all. Under these circumstances, the motion court correctly found that plaintiff was engaged in routine maintenance, rather than "repairing," and, therefore, that defendants cannot be held liable for his injury under Labor Law § 240(1) (see Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53, 781 N.Y.S.2d 477, 814 N.E.2d 784 [2004] ; Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ; cf. Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 526–527, 988 N.Y.S.2d 58 [1st Dept. 2014] ).