Summary
In Pantovic v. YL Realty, Inc., 117 A.D.3d 538, 539, 986 N.Y.S.2d 67 (1st Dept. 2014), we found that a worker injured in a fall while feeding a portable air conditioner exhaust tube into a preexisting duct hole to "furnish the need for a personal air conditioning unit" was not conducting an alteration.
Summary of this case from Mananghaya v. Bronx-Lebanon Hosp. Ctr.Opinion
2014-05-15
Walter PANTOVIC, Plaintiff–Appellant, v. YL REALTY, INC., Defendant, Sprint Communications Company L.P., Defendant–Respondent. Sprint Communications Company L.P., Third–Party Plaintiff, v. Penmark Realty Corporation, Third–Party Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Haworth Coleman & Gerstman, LLC, New York (Scott Haworth of counsel), for Sprint Communications Company L.P., respondent.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Haworth Coleman & Gerstman, LLC, New York (Scott Haworth of counsel), for Sprint Communications Company L.P., respondent.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano, David A. Beatty and Matthew W. Naparty of counsel), for Penmark Realty Corporation, respondent.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered August 2, 2012, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Sprint Communications Company L.P. (Sprint) for summary judgment on plaintiff's claims pursuant to Labor Law §§ 240(1) and 200, sua sponte dismissed plaintiff's common law claims and claims pursuant to OSHA against Sprint, and sua sponte dismissed plaintiff's complaint against YL Realty, Inc., unanimously affirmed, without costs.
Plaintiff's Labor Law § 240(1) claim was properly dismissed. Plaintiff, a superintendent, was injured when he fell off a ladder while feeding a portable AC exhaust tube into a pre-existing duct hole. The work being performed by plaintiff does not qualify as an “alteration” pursuant to the statute ( see Labor Law § 240[1]; see e.g. Amendola v. Rheedlen 125th St., LLC, 105 A.D.3d 426, 963 N.Y.S.2d 30 [1st Dept.2013] ). In any event, liability against defendant Sprint, a lessee of space at the building where plaintiff was employed, cannot be predicated on Labor Law § 240(1), since it did not contract for the work or have any right to control it ( see Ferluckaj v. Goldman Sachs & Co., 12 N.Y.3d 316, 880 N.Y.S.2d 879, 908 N.E.2d 869 [1st Dept.2009] ).
Plaintiff's claim pursuant to Labor Law § 200 was also properly dismissed since the alleged defect, excessive heat from Sprint's equipment, merely furnished the need for a personal air conditioning unit, it did not cause plaintiff's accident ( see Escalet v. New York City Hous. Auth., 56 A.D.3d 257, 867 N.Y.S.2d 62 [1st Dept.2008] ).
The motion court properly dismissed plaintiff's common law cause of action against Sprint since it implicated the same issues as his Labor Law § 200 claim ( see Hunter v. R.J.L. Dev., LLC, 44 A.D.3d 822, 825, 845 N.Y.S.2d 352 [2d Dept.2007] ). Plaintiff's OSHA claims were also properly dismissed since OSHA provides no private right of action ( see Donovan v. Occupational Safety & Health Review Commn., 713 F.2d 918, 926 [2d Cir.1983]; see also Khan v. Bangla Motor & Body Shop, Inc., 27 A.D.3d 526, 528–529, 813 N.Y.S.2d 126 [2d Dept.2006], lv. dismissed7 N.Y.3d 864, 824 N.Y.S.2d 608, 857 N.E.2d 1139 [2006];Gain v. Eastern Reinforcing Serv., 193 A.D.2d 255, 258, 603 N.Y.S.2d 189 [3d Dept.1993] ).
Although the court erred in sua sponte dismissing plaintiff's complaint against YL Realty, since issue had not yet been joined as to that defendant (CPLR 3212[a]; see Pilatich v. Town of New Baltimore, 100 A.D.3d 1248, 1249, 954 N.Y.S.2d 663 [3d Dept.2012] ), upon a search of the record, we dismiss the complaint against YL Realty pursuant to CPLR 3215(c) on the ground that it has been abandoned.