Rennoldson v. James J. Volpe Realty Corp.

216 A.D.2d 912, 629 N.Y.S.2d 141, 1995 N.Y. App. Div. LEXIS 7237

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1995
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion denied, cross motion granted and first cause of action dismissed. Memorandum: Gerald Rennoldson (plaintiff), a maintenance worker at Delta Sonic Car Wash, was injured when he fell from a ladder while replacing a leaking tube on a car wash machine. Supreme Court erred in denying the cross motion of defendant James F. Volpe, Sr., the property owner, for partial summary judgment dismissing the Labor Law § 240 (1) cause of action against him. That statute does not apply here because plaintiff "was merely performing routine maintenance in a non-construction, non-renovation context” (Howe v 1660 Grand Is. Blvd., 209 AD2d 934, lv denied 85 NY2d 803). Even assuming, arguendo, that the machine constitutes a "structure,” the replacement of a leaking tube is not a repair or alteration within the meaning of the statute (see, Labor Law § 240 [1]; Smith v Shell Oil Co., 205 AD2d 681, lv granted 84 NY2d 810; Cosentino v Long Is. R. R., 201 AD2d 528; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592). (Appeal from Order of Supreme Court, Monroe County, Siragusa, J.—Labor Law.) Present—Pine, J. P., Law-ton, Wesley, Callahan and Boehm, JJ.