Barczykowski v. Benderson Development Co.

Appellate Division of the Supreme Court of New York

Barczykowski v. Benderson Development Co.

4 A.D.3d 837, 771 N.Y.S.2d 406, 2004 N.Y. App. Div. LEXIS 1394

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 11, 2004

StatusPublished

This text of 4 A.D.3d 837 (Barczykowski v. Benderson Development Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barczykowski v. Benderson Development Co., 4 A.D.3d 837, 771 N.Y.S.2d 406, 2004 N.Y. App. Div. LEXIS 1394 (N.Y. Ct. App. 2004).

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Opinion

Appeal from a judgment of the Supreme Court, Erie County (Edward A. Rath, Jr., J.), entered November 8, 2002. The judgment dismissed the complaint in a personal injury action.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs’ motion for partial summary judgment on liability on the Labor Law § 240 (1) claim and granted defendant’s cross motion for summary judgment dismissing that claim on the ground that Roger A. Barczykowski (plaintiff) was not engaged in a protected activity at the time of his accident. Defendant established as a matter of law that the sign that plaintiff had been directed to fix was not illuminated because the light switch was not activated and that plaintiff was aware of that fact. Thus, it can[838]*838not be said that plaintiff was engaged in repair work within the meaning of Labor Law § 240 (1) at the time of his accident (see Smith v Shell Oil Co., 85 NY2d 1000, 1001 [1995]). Present— Pigott, Jr., PJ., Wisner, Hurlbutt, Scudder and Kehoe, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (Edward A. Rath, Jr., J.), entered November 8, 2002. The judgment dismissed the complaint in a personal injury action.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied plaintiffs’ motion for partial summary judgment on liability on the Labor Law § 240 (1) claim and granted defendant’s cross motion for summary judgment dismissing that claim on the ground that Roger A. Barczykowski (plaintiff) was not engaged in a protected activity at the time of his accident. Defendant established as a matter of law that the sign that plaintiff had been directed to fix was not illuminated because the light switch was not activated and that plaintiff was aware of that fact. Thus, it can[838]*838not be said that plaintiff was engaged in repair work within the meaning of Labor Law § 240 (1) at the time of his accident (see Smith v Shell Oil Co., 85 NY2d 1000, 1001 [1995]). Present— Pigott, Jr., PJ., Wisner, Hurlbutt, Scudder and Kehoe, JJ.

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Bluebook (online)

4 A.D.3d 837, 771 N.Y.S.2d 406, 2004 N.Y. App. Div. LEXIS 1394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barczykowski-v-benderson-development-co-nyappdiv-2004.

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