Bautista v. 165 West End Avenue Associates, L.P.

Appellate Division of the Supreme Court of New York

Bautista v. 165 West End Avenue Associates, L.P.

137 A.D.3d 714, 27 N.Y.S.3d 384

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

DecidedMarch 31, 2016

Docket109503/08 691 591070/08 590876/10 690

StatusPublished

This text of 137 A.D.3d 714 (Bautista v. 165 West End Avenue Associates, L.P.) 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.

Bluebook

Bautista v. 165 West End Avenue Associates, L.P., 137 A.D.3d 714, 27 N.Y.S.3d 384 (N.Y. Ct. App. 2016).

Pincite

Opinion

Judgment, Supreme Court, New York County (Debra A. James, J.), entered February 28, 2014, insofar as appealed from as limited by the briefs, dismissing the Labor Law § 241 (6) claim as against defendant 165 West End Avenue Owners Corp. (Owners), unanimously affirmed, without costs.

Plaintiff allegedly was injured when a screw that he was removing in the course of replacing window balances in a cooperative apartment unit “jumped” and struck him in the *715 eye. Plaintiff is correct that his work replacing window balances constitutes “maintenance” pursuant to Industrial Code (12 NYCRR) § 23-1.4 (b) (13). However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241 (6) claim was correctly dismissed (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]; Martinez v Morris Ave. Equities, 30 AD3d 264 [1st Dept 2006]).

Concur—Tom, J.P., Sweeny, ManzanetDaniels, Gische and Gesmer, JJ.

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Judgment, Supreme Court, New York County (Debra A. James, J.), entered February 28, 2014, insofar as appealed from as limited by the briefs, dismissing the Labor Law § 241 (6) claim as against defendant 165 West End Avenue Owners Corp. (Owners), unanimously affirmed, without costs.

Plaintiff allegedly was injured when a screw that he was removing in the course of replacing window balances in a cooperative apartment unit “jumped” and struck him in the *715 eye. Plaintiff is correct that his work replacing window balances constitutes “maintenance” pursuant to Industrial Code (12 NYCRR) § 23-1.4 (b) (13). However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241 (6) claim was correctly dismissed (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]; Martinez v Morris Ave. Equities, 30 AD3d 264 [1st Dept 2006]).

Concur—Tom, J.P., Sweeny, ManzanetDaniels, Gische and Gesmer, JJ.

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Bluebook (online)

137 A.D.3d 714, 27 N.Y.S.3d 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bautista-v-165-west-end-avenue-associates-lp-nyappdiv-2016.

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