Opinion
No. 1332 Index No. 151121/19 Case No. 2023-03891
12-28-2023
Bryan Minholz et al., Plaintiffs-Appellants, v. Columbia University, Defendant-Respondent.
Finkelstein & Partners, LLP, Newburgh (Andrew L. Spitz of counsel), for appellants. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Nicole A. Verzillo of counsel), for respondent.
Finkelstein & Partners, LLP, Newburgh (Andrew L. Spitz of counsel), for appellants.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Nicole A. Verzillo of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Webber, Friedman, Shulman, Rosado, JJ.
Order, Supreme Court, New York County (Richard Latin, J.), entered April 17, 2023, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing plaintiffs' Labor Law §§ 200, 240(1), and 241(6) claims, unanimously affirmed, without costs.
Defendant established, prima facie, that plaintiff, an employee of a nonparty moving and logistics company, is not among the class of persons entitled to invoke the protections of Labor Law §§ 200, 240(1), and 241(6) as a basis for recovery (see Gibson v Worthington Div. of McGraw-Edison Co., 78 N.Y.2d 1108, 1109-1110 [1991]; Blandon v Advance Contr. Co., 264 A.D.2d 550, 551-552 [1st Dept 1999], lv denied 94 N.Y.2d 754 [1999]). It is undisputed that plaintiff's employer was hired by defendant to move a large computer server rack, among other large items, and plaintiff was injured when the server fell on his foot while he and a colleague were transporting the server rack.
In opposition, plaintiffs failed to raise a triable of fact by arguing that relocation of the computer server rack was "necessary and incidental" to demolition work, thus extending the statute's protections to plaintiff, based on deposition testimony that the room originally housing the server rack was about to be gutted (see Longo v Metro-North Commuter R.R., 275 A.D.2d 238, 239 [1st Dept 2000]). Contrary to plaintiffs' contention, even if the server rack was being moved in anticipation of demolition work, there is no evidence that construction was ongoing at the time of plaintiff's accident to bring this activity within the ambit of the Labor Law (see Blandon, 264 A.D.2d at 552 [wherein the court observed, "[n]ot every employee lawfully on the property is necessarily affiliated with the construction work," citing Gibson v Worthington Div. of McGraw-Edison Co., 78 N.Y.2d 1108 [1991], or is otherwise "'frequenting the premises within the meaning of Labor Law § 241(6),'" quoting Farrell v Dick Enters., 227 A.D.2d 956, 956 [4th Dept 1996)], lv denied 94 N.Y.2d 754 [1999]).