Shapiro v. ACG Equity Associates, L.P.

233 A.D.2d 857, 649 N.Y.S.2d 279, 1996 N.Y. App. Div. LEXIS 13328

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that portion of defendant’s motion for summary judgment seeking dismissal of the Labor Law § 240 (1) cause of action and properly granted plaintiffs’ cross motion for partial summary judgment on liability on that cause of action. Leonid Shapiro (plaintiff) was engaged in the repair of a broken door-closing mechanism, an activity protected under the statute (see, Holka v Mt. Mercy Academy, 221 AD2d 949, Iv dismissed 87 NY2d 1055). Unlike the plaintiffs in Smith v Shell Oil Co. (85 NY2d 1000, 1002) and Rennoldson v Volpe Realty Corp. (216 AD2d 912, Iv dismissed 86 NY2d 837), plaintiff in this case was not engaged in the routine maintenance of a portion of the structure. Without the repair, the door would not function properly. Moreover, plaintiff was injured when he fell from a height (see, Guillory v Nautilus Real Estate, 208 AD2d 336, 337-338, appeal dismissed and Iv denied 86 NY2d 881; Vurchio v Kalikow Lincoln Dev. Co., 187 AD2d 280).

The court erred, however, in granting that portion of defendant’s motion for summary judgment seeking dismissal of the Labor Law § 241 (6) cause of action. The repair was a form of "construction work” under the statute, as defined in 12 NYCRR 23-1.4 (b) (13) (see, DaBolt v Bethlehem Steel Corp., 92 AD2d 70, 73-74, lv dismissed 60 NY2d 554).

We therefore modify the order by denying in part defendant’s motion for summary judgment and reinstating the Labor Law § 241 (6) cause of action. (Appeals from Order of Supreme Court, Erie County, Sedita, Jr., J.—Summary Judgment.) Present—Green, J. P., Pine, Wesley, Davis and Boehm, JJ.