Caban v. 1691 Fulton Ave. Hous. Dev. Fund Corp.

2021 NY Slip Op 07499, 200 A.D.3d 593, 155 N.Y.S.3d 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2021
• Docket: Index No. 26335/15E Appeal No. 14906 Case No. 2019-4699
• Status: Published

Opinion

Caban v 1691 Fulton Ave. Hous. Dev. Fund Corp. (2021 NY Slip Op 07499)

Caban v 1691 Fulton Ave. Hous. Dev. Fund Corp.

2021 NY Slip Op 07499

Decided on December 28, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 28, 2021
Before: Kern, J.P., Mendez, Shulman, Higgitt, JJ.

Index No. 26335/15E Appeal No. 14906 Case No. 2019-4699

[*1]Eliezer Caban, Plaintiff-Appellant,

v

1691 Fulton Avenue Housing Development Fund Corporation et al., Defendants-Respondents.

Jaroslawicz & Jaros PLLC, New York (David Tolchin of counsel), for appellant.

Perry, Van Etten, Rozanski & Kutner, LLP, New York (Jessica J. Beauvais of counsel), for respondents.

Order, Supreme Court, Bronx County (Lizbeth González, J.), entered April 30, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims, and denied plaintiff's cross motion for partial summary judgment on those claims and to strike defendants' affirmative defense based on the Workers' Compensation Law, unanimously affirmed, without costs.

Plaintiff's limited task of replacing a ballast in a light fixture constitutes routine maintenance and thus is not covered by Labor Law § 240(1) (see Monaghan v 540 Inv. Land Co. LLC, 66 AD3d 605, 605 [1st Dept 2009]).

Labor Law § 241(6) is inapplicable to plaintiff's claim because his work was unrelated to construction, excavation, or demolition (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]; Parente v 277 Park Ave. LLC, 63 AD3d 613, 614 [1st Dept 2009]).

In light of the fact that plaintiff has no other claims remaining, the issue of the Workers' Compensation defense is academic. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 28, 2021