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Fischetto v. LB 745 LLC

Appellate Division of the Supreme Court of New York, First Department
Jan 25, 2007
36 A.D.3d 538 (N.Y. App. Div. 2007)

Opinion

No. 51-52.

January 25, 2007.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 22, 2005, which, insofar as appealed from, granted defendant's motion to dismiss plaintiff's causes of action under Labor Law § 240 (1) and § 200, and denied plaintiffs' cross motion for summary judgment on the issue of defendant's liability under Labor Law § 240 (1), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 20, 2006, which denied plaintiffs' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

Hach Rose, LLP, New York (Philip S. Abate of counsel), for appellants.

Fiedelman McGaw, Jericho (Ross P. Masler of counsel), for respondent.

Before: Saxe, J.P., Marlow, Nardelli Sweeny and Catterson, JJ.


The section 240 (1) claim was properly dismissed as the cleaning work plaintiff was performing at the time of his fall was not incidental to construction, demolition or repair work, and did not involve a significant alteration to the premises ( see Broggy v Rockefeller Group, Inc., 30 AD3d 204). The section 200 claim was properly dismissed because the alleged dangerous condition arose from plaintiff's employer's methods over which defendant property owner exercised no supervisory control ( see Comes v New York State Elec. Gas Corp., 82 NY2d 876k It does not avail defendant to argue that defendant knew or should have known that use of the portable gantry supplied by plaintiffs employer, an independent contractor, to lift one-ton steel doors to the building's condenser unit presented a dangerous condition on the premises ( see id. at 878). In any event, plaintiff fails to adduce evidence sufficient to raise an issue of fact as to whether defendant knew or should have known that the gantry was dangerous.


Summaries of

Fischetto v. LB 745 LLC

Appellate Division of the Supreme Court of New York, First Department
Jan 25, 2007
36 A.D.3d 538 (N.Y. App. Div. 2007)
Case details for

Fischetto v. LB 745 LLC

Case Details

Full title:ROY FISCHETTO et al., Appellants, v. LB 745 LLC, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 25, 2007

Citations

36 A.D.3d 538 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 454
829 N.Y.S.2d 54