Noriega v. State Street Bank & Trust Co. of Connecticut

271 A.D.2d 313, 706 N.Y.S.2d 107, 2000 N.Y. App. Div. LEXIS 4410

Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 3, 1999, which, to the extent appealed from, denied defendants-appellants’ cross motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion to the extent awarding defendants-appellants summary judgment dismissing plaintiffs Labor Law § 240 (1) claim, and otherwise affirmed, without costs.

The motion court erred in denying defendants-appellants’ summary judgment dismissing plaintiffs Labor Law § 240 (1) claim because plaintiffs fall was not, under the circumstances of its occurrence, attributable to the sort of elevation-related risk against which Labor Law § 240 (1) was intended to afford protection (see, Galloway v Tenth City Assocs., 228 AD2d 254, 255). The motion court, however, properly denied defendants-appellants’ cross motion for summary judgment insofar as it sought dismissal of plaintiff’s Labor Law § 241 (6) claim. Contrary to appellants’ arguments in support of dismissing that claim, plaintiff was lawfully frequenting the premises in question at the time of his accident (see, 12 NYCRR 23-1.4 [b] [39]; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577), and plaintiffs work cleaning office window setbacks may constitute “construction” within the meaning of Labor Law § 241 (6) (see, 12 NYCRR 23-1.4 [b] [13]). Finally, in view of factual questions as to whether defendants-appellants had notice of the condition that allegedly caused plaintiffs harm, the motion court properly denied defendants-appellants summary judgment dismissing plaintiffs common-law negligence claim. Concur— Williams, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.