Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present:       HONORABLE THOMAS V. POLIZZI           IA Part 14
                              Justice

________________________________________
                                       x            Index
JOHN CAVALIERE, et al.                              Number 8315 1994

                                                   Motion
           - against -                              Date January 11, 2000

JAB ESTATES, et al.                                 Motion
_______________________________________x            Cal. Number 30

The following papers numbered 1 to 22 read on this motion by third-party defendant Staley Elevator Company, Inc. (hereinafter "Staley" for summary judgment dismissing the complaint against defendant/third-party plaintiff JAB Estates (hereinafter "JAB") and/or dismissing the third-party complaint asserted against Staley; a cross motion by defendant JAB for summary judgment dismissing the complaint; and a cross motion by plaintiffs for a commission to take the deposition of a non-party witness.

                                               Papers
                                               Numbered

Notice of Motion - Affidavits - Exhibits ......... 1 - 3
Notices of Cross Motion - Affidavits - Exhibits .. 4 - 15
Answering Affidavits - Exhibits .................. 16 - 17
Reply Affidavits ................................. 18 - 20
Other ............................................ 21 - 22

Upon the foregoing papers it is ordered that the motion and cross motions are determined as follows:

Plaintiff John Cavaliere was employed as a mechanic's helper by third-party defendant Staley which provided elevator maintenance and repair services to a certain building owned by defendant JAB. It is alleged that plaintiff was injured at JAB's premises when he slipped as he attempted to climb over a detached door lying on an angle in front of a doorway in order to gain entry to the elevator machine room on the roof of the building. The complaint contains a cause of action seeking damages for negligence and violations of Labor Law '' 200, 240 and 241 as well as a derivative cause of action on behalf of the injured plaintiff's wife.

The motion by Staley and the cross motion by JAB for summary judgment dismissing the complaint and the third-party complaint are granted. Plaintiff's attorney states in his affirmation that plaintiffs have no objection to dismissal of the section 240 claim and the evidence demonstrates that the injuries sustained by plaintiff John Cavaliere did not result from an elevation related hazard. (See, Smith v New York State Elec. & Gas Corp., 82 NY2d 781; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509.) The claim premised upon a violation of Labor Law ' 241(6) is without merit since plaintiff was not engaged in construction, excavation or demolition work at the time of his accident. (See, Wray v 654 Madison Ave. Assocs., L.P., 253 AD2d 394; Spiteri v Chatwal Hotels, 247 AD2d 297; Lanzilotta v Lizby Assocs., 216 AD2d 229; but see, Shapiro v ACG Equity Assocs., 233 AD2d 857.) Moreover, the implementing regulations of the Industrial Code allegedly violated by defendant JAB are not applicable to the facts of this case. (See, Rose v A. Servidone, Inc., ___ AD2d ___, 702 NYS2d 603; Jiron v China Buddhist Assn., ___ AD2d ___, 698 NYS2d 315; Jacome v State of New York, ___ AD2d ___, 698 NYS2d 320; Norton v Park Plaza Owners Corp., 263 AD2d 531.) Nor may plaintiffs prevail on their Labor Law ' 200 and common-law negligence claims. Liability under Labor Law ' 200 and common-law negligence will not attach when the allegedly dangerous condition complained of was open and obvious. (Gonzalez v Fastflex, Inc., ___ AD2d ___, 2000 WL 254475; Rose v A. Servidone, Inc., supra; Panetta v Paramount Communications, 255 AD2d 568; see, Richichi v Construction Mgt. Technologies, 244 AD2d 540; Perez v New York City Indus. Dev. Agency, 223 AD2d 628; Brezinski v Olympia & York Water St. Co., 218 AD2d 633.)

In view of the above determination, plaintiffs' cross motion is denied as moot. The deposition testimony sought by plaintiffs concerned the issue of prior notice. Inasmuch as that issue is not implicated in the decision dismissing the complaint, the disclosure request provides no basis for postponing the resolution of the summary judgment applications.

Dated: April 5, 2000                    ____________________________
                                                  J.S.C.