Plaintiff, who was employed as an HVAC service technician, was injured when he fell from a ladder leaning against the roof of a building owned by defendant Westmere Realty, LLC (hereinafter, Westmere). He was on the roof to perform work on a heating unit that serviced [*2]space rented by defendant Michael Lepkowski, LCB Tax Associates, Inc. d/b/a Jackson-Hewitt (hereinafter, Jackson-Hewitt). At his examination before trial, plaintiff described his accident as occurring as he was descending the ladder to retrieve his tools from his truck. He testified that the flat roof of the premises was covered with ice and an inch or two of snow (Westmere Motion Exhibit D page 57-58). While standing on the top rung with both feet on the ladder, it slid "sideways and backwards" (Id., page 68). Though he was not clear as to how the accident occurred (see, Id. pages 73-78), he testified that the rails of the ladder were leaning against the icy surface on the edge of the roof (Id. page 73) and that "best understanding" of how the accident occured was that "It was a slippery surface leaning onto the building . And when there is that much wieght on top of it, the ladder must have been top heavy. And it was just enough, my momentum getting on the ladder was enough to push it to the side (Id. page 72)Plaintiff commenced this action against the building owner and tenant alleging violations of Labor Law §240(1), §241(6), and common law and statutory negligence. Westmere asserted a cross claim against the tenant for indemnification. Defendants now each seek summary judgment dismissing plaintiff's claims and Jackson Hewitt seeks summary judgment dismissing Westmere's cross claim.

The scope of Labor Law §240(1) is not necessarily limited to providing coverage for workers on a construction site, rather, it is necessary to consider whether the worker was injured while engaged in a specified task, including the "repairing...of a building or structure" (Labor Law §240(1); Martinez v. City of New York, 93 NY2d 322, 326). Repair work must be distinguished from "routine maintenance", however, because the former is a covered activity but the latter is not (Esposito v. New York City Industrial Development Agency, 1 NY3d 526, 528). Here, the parties do not dispute what work was performed on the roof the day of plaintiff's accident, rather, the essential dispute is whether the work performed was repair work or "routine maintenance" as the terms are defined by Labor Law §240(1).

Whether a worker was engaged in "routine maintenance" or repair work requires an assessment of the nature of the work performed, not the characterization of the work. For example, if the work involved replacement of parts that would ordinarily require replacement over time due to wear and tear, it is "routine maintenance", even if it was deemed a "repair" job (see, e.g Esposito v. New York City Industrial Development Agency, 305 AD2d 108. affd., 1 NY3d 526 (Supra)). If there is some evidence that the "machine or object being worked upon was inoperable or not working properly" the work may be repair work (Kirk v. Outokumpu American Brass, Inc., 33 AD3d 11136, 1138). But, "[e]ven if the item to be repaired is malfunctioning or inoperable, when the work involves only component replacement or adjustment necessitated by normal wear and tear, it constitutes routine maintenance rather than "repairing " or any other enumerated activity". (Barbarito v. County of Tompkins, 22 AD3d 937, app. den. 7 NY3d 701). Thus, if the object is inoperable or not working properly due to a failure to perform regular and necessary maintenance, the work performed to restore the object to operating condition may be still be considered "routine maintenance" (Robertson v. Little Rapids Corporation, 277 AD2d 560, abrogated on other grounds, Goad v. Sourther Elect. Intl., 304 AD2d 887). ).

Summary judgment is a drastic remedy which should only be granted when there clearly are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Accordingly, [*3]defendants, as proponents of summary judgment, must present sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Only if a right to judgment as a matter of law is established will the burden shift to the plaintiff to establish, by admissible proof, the existence of genuine issues of material fact (see Zuckerman v City of New York, 49 NY2d 557).

In support of their motion and cross motion, defendants submit an invoice prepared on the day of the accident by Thomas French, the employee dispatched to the Jackson-Hewitt space after plaintiff's accident, Mr. French's affidavit, and a transcript of deposition testimony provided by Donald Abbruzzese, the president of Northeast Refrigeration (hereinafter, Northeast), plaintiff's former employer.

The invoice dated January 21, 2005, reads: "SANDED FLAME SENSOR. UNIT WOULD NOT LIGHT EACH TIME. ADJUST SPARKER AND CLEANED. UNIT FINE NOW" (Jackson Hewitt Exhibit J). Describing the work performed, Mr. French avers that the roof top unit

has a flame sensor. This is a safety switch that cuts off the flow of gas to the heating unit in the absence of a flame. Under normal operation, the flame burns over the sensor. Due to the presence of the flame, over time, the sensor can become dirty. When this happens, the sensor cuts off the gas supply to the heating unit. I sanded the flame sensor to remove the build up of debris and rust caused by the flame...The flame is ignited by a sparker similar to a spark plug. Over time, due to wear and tear, the "spark gap" of the sparker can come out of adjustment. This is a normal item of wear and tear. I adjusted the spark gap and cleaned the sparker.

A...gets out of adjustment because as it is in the flame, possibly at the end of it, it actually starts to burn away —

Q. Okay.

A. So it had to be readjusted sometimes, or sanded.

(Id. at pages 61-62).

With respect to the flame sensor, Mr. Abbruzzesse explained that "sanding" is the same as cleaning, and is necessary because a glaze builds up, "acts like an insulator, and the flame doesn't make a get a good connection" (Id., p 60). The build up, he explained, "happens by the nature of operation". When asked whether sanding/cleaning the flame sensor is a maintenance item, he testified:

A. "...yes it is if you look at a manufacturer's book, not all of them say it, but part of the maintenance is to sand that flame sensor. But I'm not sure on this roof top if it is or not.

Q. Okay. Whether it's in the book, you mean? [*4]

A. Yes.

Q. But regardless of whether it's in the book, the phenomenon occurs

A. Correct.

Q. by the nature of flame and this sensor?

A. If they go on a maintenance procedure, they are supposed to sand the flame sensor.

(Id., pp. 60-61)

Both Mr. Abbruzzesse and Mr. French confirmed that after the work was performed on January 21, 2005, the heat was on and both the flame sensor and sparker were working properly (Id., page 62; Westmere Exhibit G ¶ 5).

The Court is satisfied, based on these submissions, that the activities performed on the rooftop unit on January 21, 2005 were maintenance, not repair (see, Abatiello v. Lancaster Studio Associates, 3 NY3d 46 [where remedy for malfunction would be loosening a few screws and replacing tap on malfunctioning cable junction box, the work is routine maintenance]; compare, Holka v Mt. Mercy Academy, 264 AD2d 354 lv. dismissed, 87 NY 1055 [removal of broken motor on air conditioning unit for the purpose of repairing it is repair work covered by §240(1); Kerr v. Louisville Housing, Inc., 2 AD3d 924 [removal of screws from inoperable, improperly installed rooftop ventilator is repair, not maintenance]).

In response to defendant's motion, plaintiff argues that the work performed on January 21, 2005 was a temporary repair, incidental to the permanent repair of the unit, which was not completed until on or about February 4, 2005. To proceed on this premise, plaintiff must demonstrate that there is at least a factual question with regard to whether the work performed on January 21, 2005 "fell into a separate phase easily distinguishable from other parts of [a] larger construction project" (Prats v. Port Authority of New York and New Jersey,100 NY2d 878, 881; Jones v. Village of Dannemora, 27 AD3d 844). In this regard, the Court of Appeals instructs that

"it is neither pragmatic nor consistent with the spirit of the stature to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts

Prats, Supra at 882). If there is a "bright line separating the enumerated and non enumerated work" (Beehner v Eckerd Corporation, 3 NY3d 751), the non-enumerated work performed falls into a separate phase and plaintiff was "not a person employed' to carry out repairs as that term is used in §240(1) " (Martinez, Supra at 326). Accordingly, not only must there be no separating, "bright line", but it must also be clear that the work, as a whole, was enumerated work.

In support of his argument that the "general context" of the work was repair, plaintiff includes a handwritten invoice, dated February 4, 2005 that reads: "Found Control Board Faulty - Control would not sense flame" and indicates that two parts, a Control Module and Spark Probe, were installed. Plaintiff also submits copies of handwritten invoices by Northeast refrigeration evincing that (1) a control board and "Electrode Assy Universal" were ordered on February 3, 2005 and delivered on February 4, 2005 (Pakenham Affidavit, Exhibit B, C, D, E).

In further support, plaintiff submits his own affidavit and an affidavit by an expert, Michael O'Brien. Neither affidavit provides a comprehensive explanation of the activities performed on February 4, 2005. Pakenham avers that it was a "permanent repair of the condition, [*5]which required the temporary repair on January 21, 2005" (Pakenham Affidavit, ¶13). O'Brien avers that, "the problem with this heating unit evidenced in the invoices...is a significant one. The problem is not one would expect to see routinely, nor was the work done as part of what would be expected in routine maintenance of such a unit which would include filter changes, inspection of belts and electrical components or coil cleaning" (O'Brien Affidavit, ¶8). O'Brien adds that it is "simply inaccurate to characterize the work done...on January 21, 2005 as evidenced by the...invoices as simple maintenance, or necessitated by normal wear and tear..." (Id., ¶9).

At his deposition, Mr. Abbruzzese's characterization of the work performed on February 4, 2005 appears to be consistent with both plaintiff's and his expert's characterization, however, for when questioned about the invoice ^[FN1] (Jackson Exhibit K), he explained that the work performed on February 4 by Northeast Refrigeration would have been the "permanent fix" of the "problem" (Westmere Exhibit E, Abbruzzese Transcript, page 37) explaining:

A: ...The spark probe is basically the sensor sparker that he cleaned on 1/21/2005, which goes back to the control board, which is basically the brains of the furnace that, you know, is the safety device that it got a flame signal to turn on the main burner.

Q: So if I understand it, the part that's referenced that Mr. French sanded in [the January 21, 2005 invoice]...

A: Correct.

Q. ...does the February 8, 2005 invoice reflect that that part was replaced?

A. Yes.

Q. And in addition to that, you said something about a control board.

A. The control board is a part where that probe goes to prove that there is a flame and it's safe to turn the main gas burner on.

Z. And that's in the unit that's up on the roof?

A. Yes.

Q. And that had to be replaced as well?

A. Yes.

Q. Is replacing the control board something that would be done during the annual maintenance that you talked about earlier?

A. No.

Q. Would replacing the spark probe, I think that's what it is, the part that was replaced, would that be something that would be part of the annual service that we talked about?

A. No.

(Id., pages 37-38).

Even assuming, as plaintiff contends, that the work performed on January 21, 2005 failed to properly fix the heating unit, and that the work performed on February 4, 2005 was something more than "component replacement or adjustment necessitated by normal wear and tear", this Court finds that plaintiff has failed to raise a triable issue of fact with regard to the existence of a [*6]"bright line separating" the work performed on January 21 from the work performed on February 4, 2005.

As noted above, neither affidavit submitted by plaintiff specifically explains the nature of "the problem". Additionally, simply describing the work as "significant" and "not maintenance" does not create a triable issue of fact with regard to whether the work is "repair" in the legal sense (see, Esposito, Supra; Kirk, Supra at 1138). The evidence in the record demonstrates that on January 21, 2005, "the problem" was resolved by cleaning one part and sanding another, and, at the completion of that activity, the heat was on and the unit was "fine". Mr. Abruzzese explained that it appeared that the heat worked for a period following the first visit, and

...he got it to work, it lasted for two weeks,... and he went back, there was another no heat call, and that's when he decided that he was going to change the module and the spark box —and the spark probe.

These facts distinguish this case from Prats, (Supra), where the worker was performing inspections that were "ongoing and contemporaneous with the other work that formed part of a single contract" the other contract work being "level[ing] floors, lay[ing] concrete and rebuild[ing] walls to replace large air filtering systems" (Id., page 880). Here, even assuming that the work performed on February 4, 2005 was "repair" for purposes of §240(1), the enumerated work could not have begun until after the second no heat call and after the parts were ordered.

Plaintiff's reliance on deposition testimony by Mr. Casler, an employee at Jackson Hewitt who was working at the location in January and February 2005 does not alter this result. Mr. Casler testified that "the second Northeast guy" "got his heat on", adding that he was told that the "thermocouple was bad" and he needed a part (Jackson Hewitt Exhibit H, pages 47-48). Though Mr. Casler does not testify with specificity when this conversation occurred, plaintiffs contend it occurred on January 21, 2005. Defendants argue that this conversation could not have occurred on January 21, 2005, because Mr. French did not order any parts until nearly two weeks later. Even assuming, however, that the conversation occurred on January 21, 2005, the "bright line" separating non-enumerated work from enumerated work does not shift, where, as here, there is no dispute that the parts were not ordered until February 3, 2005.

Based on the foregoing determination that the work performed was maintenance, not repair, and because, the protection of Labor Law §241(6) does not extend to claims arising out of maintenance performed outside of the construction context (Nagel v. D& R Realty Corporation, 99 NY2d 98), defendants motions to dismiss plaintiff's Labor Law §240(1) and §241(6) claim is granted.

Defendants also seek summary judgment dismissing plaintiff's Labor Law §200 cause of action. Labor Law §200 is a codification of the owner and/or general contractor's common law duty to provide workers with a safe place to work (Comes v. New York State Electric and Gas Corporation, 82 NY2d 876). If the hazardous condition is caused by the method or means of work, an owner will not be liable unless it is demonstrated that the owner had supervisory control over the work (Lombardi v. Stout, 80 NY2d 290, 295). Where, as here, it is alleged that the injuries resulted from a dangerous condition at the work site, a plaintiff must demonstrate that the [*7]defendants had actual or constructive notice of the unsafe condition that caused the accident (Jurgens v. Whiteface Resort on Lake Placid, 293 AD2d 924, 926) and control of the place where the injury occurred (Wolfe v. KLR Mechanical, 35 AD3d 916).

Here, defendant Jackson Hewitt argues that because it had no obligation under the lease with regard to the roof, it can not be liable under Labor Law §200. This Court agrees that as a matter of law, defendant Jackson Hewitt has demonstrated that it did not have control of the place where the injury occurred. The Court notes that Westmere's owner and property manager, Michael Caruso, testified that after the accident, he noticed a "small little patch" (Westmere Exhibit C, Caruso Transcript, page 108) of snow on the ground in the area "underneath his ladder" after the ladder had fallen to the ground (Id. p. 97; p. 106). As noted above, though the plaintiff did not have an exact recollection of the fall, he testified, first, that he placed the ladder on a "clear space" (Id. p 42 ), and later, confirmed that the ladder was placed where the pavement was dry (Id. p. 50). Though the lease requires Jackson Hewitt to remove snow and ice from both the front and rear entrance ways (Exhibit I, para 31), there is no record support for any claim that the base of the ladder slipped on snow or ice on the ground in the vicinity of Jackson-Hewitt's rear entryway and Caruso testified that Jackson Hewitt had no obligation under the lease with regard to the roof (Caruso Transcript at page 113).

Constructive notice of a dangerous condition may exist where a defect is visible and apparent and has existed for a "sufficient length of time prior to the accident to permit [defendants] to discover and remedy it" (Morrow v. Ashley, 3 AD3d 619, 620, citing Gordon v. American Museum of Natural History, 67 NY2d 836, 837). Though he testified that he did not "examine" the roof for ice or snow (Caruso Transcript, page 34), he recalled that it had snowed the night before the accident (Id., page 106), and confirmed that he did not engage in a regular practice of removing snow and ice from the roof (Id., page 41). Accordingly, this Court finds that defendant Westmere has not established as a matter of law that it did not have constructive notice of the allegedly dangerous conditions and the burden has not shifted to plaintiff on this claim (Winegrad v. New York University Medical Center, 64 NY2d 851, 853).

Jackson Hewitt also seeks summary dismissal of Westmere's cross claim for indemnification. Westmere asserts that under the lease agreement, Jackson Hewitt is responsible for maintaining and repairing the HVAC unit and for snow and ice removal along the storefront, including the front and rear entryways to the leased space. In light of the foregoing determinations (1) that there was no violation of Labor Law §240(1) and §241(6) and that Jackson Hewitt did not have control of the place where the injury occurred (i.e. the roof), Jackson Hewitt's motion is granted.

Accordingly,

Defendants motions to dismiss plaintiff's Labor Law §240(1) and 241(6) claims are GRANTED; defendant Jackson Hewitt's motion to dismiss plaintiff's Labor Law §200 and Westmere's cross claim is granted; defendant Westmere's motion to dismiss plaintiff's Labor Law §200 claim is denied, all without costs. The foregoing Memorandum constitutes the Decision and Order of the Court. All papers, including this Decision and Order, are returned to the attorneys for defendant Jackson Hewitt. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry. [*8]

SO ORDERED

ENTER

Dated: Albany, New York

, 2007

_______________________________________

Michael C. Lynch

Justice of the Supreme Court