Cullen v. Uptown Storage Co.

268 A.D.2d 327, 702 N.Y.S.2d 244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 18, 1999, which, upon the summary judgment motions of action No. 1 defendant Mass Electric Construction Co. (Mass Electric) and third-party defendant New York City School Construction Authority and, in action No. 2, upon a search of the record, inter alla, granted summary judgment dismissing all claims and cross claims in both actions except for the common-law negligence causes of action as against Mass Electric, unanimously modified, on the law, to reinstate the common-law negligence causes of action of plaintiffs Edward and Susan Cullen as against Allstate Building Maintenance Contractors, Inc. (Allstate) and the cross claims of Allstate and Mass Electric as against each other in that action, and otherwise affirmed, without costs.

The replacement of ceiling tiles in a school building by the plaintiffs, “maintenance mechanics” employed by the Board of Education of the City of New York, was routine maintenance, and not part of the renovation work that had previously been performed by various contractors and subcontractors or that was ongoing in other parts of the building, and therefore plaintiffs’ claims under Labor Law § 240 (1) were properly dismissed (see, Joblon v Solow, 91 NY2d 457, 464-465).

There are, however, triable issues of fact as to whether the condition of a ladder furnished by, or borrowed from, Allstate, which had a duty to maintain the ladder, was a contributing factor to the accident, and the Cullens’ common-law negligence claims against that company are therefore reinstated, as are the cross claims of Allstate and Mass Electric as against each other in that action. Concur—Sullivan, J. P., Wallach, Rubin, Saxe and Friedman, JJ.