Bosch v. 229 West 97 Realty Associates

279 A.D.2d 373, 719 N.Y.S.2d 564, 2001 N.Y. App. Div. LEXIS 694

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2001
• Status: Published

Opinion

Order, Supreme Court, New York County (Edward Lehner, J.), entered July 8, 1999, which, in an action under Labor Law § 240 (1), granted defendants-respondents’ motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants-respondents are the governing body of condominium association responsible for the maintenance of the common elements of the building in which plaintiffs were injured, and the cooperative corporation that owns the residential units in the building. Another defendant is the sponsor of the condominium conversion, who retained “unsold shares” in the particular apartment that plaintiffs were improving when they were injured, and who would be the party responsible under Labor Law § 240. The action was properly dismissed as against respondents on the basis of evidence establishing that the sponsor had the right to make improvements to the subject apartment without respondents’ consent; that it was the sponsor, acting on its own and not as respondents’ agent, who hired plaintiffs’ employer; and that the work that plaintiffs were doing at the time they were injured did not involve the building’s common elements (see, Brown v Christopher St. Owners Corp., 211 AD2d 441, affd for other reasons 87 NY2d 938; Ceballos v Kaufman, 249 AD2d 40), but rather a sheetrock ceiling in the bathroom of an apartment. Concur — Sullivan, P. J., Rosenberger, Tom, Ellerin and Friedman, JJ.