Opinion
2012-07-31
Pasquale A. PICARO, Plaintiff–Respondent–Appellant, v. NEW YORK CONVENTION CENTER DEVELOPMENT CORPORATION, et al., Defendants–Appellants–Respondents, United Rentals, Inc., Defendant.
McGaw Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for appellants-respondents. The Feld Law Firm P.C., New York (John G. Korman of counsel), for respondent-appellant.
McGaw Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for appellants-respondents. The Feld Law Firm P.C., New York (John G. Korman of counsel), for respondent-appellant.
TOM, J.P., ANDRIAS, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered November 15, 2011, which, to the extent appealed from as limited by the briefs, denied the motion of defendants New York Convention Center Development Corporation (CDC) and New York State Urban Development Corporation d/b/a Empire State Development Corporation (UDC) insofar as they sought summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and denied plaintiff's motion for partial summary judgment on the issue of liability on that claim, unanimously modified, on the law, to grant defendants' motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint against defendants CDC and UDC.
Plaintiff house electrician was engaged in routine maintenance work when he fell from a ladder affixed to a scissor lift after fixing a light fixture ( see Monaghan v. 540 Inv. Land Co. LLC, 66 A.D.3d 605, 888 N.Y.S.2d 24 [2009] ). Indeed, plaintiff testified that he fixed light fixtures about twice weekly, that “nine out of ten times” the house electricians would change the whole fixture when performing such work, and that he retrieved sockets and bulbs from the building's storage area in order to perform his work. Further, his subforeman stated in an affidavit that the high-voltage nature of the lights caused the sockets to deteriorate, requiring them to be replaced on a regular basis, which necessitated keeping a large volume of sockets in stock on the premises. Accordingly, plaintiff's work clearly involved “replacing components that require replacement in the course of normal wear and tear” (Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ).