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

Appellate Division of the Supreme Court of the State of New York·Decided March 31, 2016·No. 109503/08 691 591070/08 590876/10 690·Published

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.

Free access — add to your briefcase to read the full text and ask questions with AI

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.

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

137 A.D.3d 714 (Bautista v. 165 West End Avenue Associates, L.P.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related