Plaintiff Kenneth Kuhn ("Kuhn") commenced this personal injury action alleging that on March 18, 2002, while he was employed as a licensed elevator inspector for third-party defendant/second third-party plaintiff Otis Elevator Company ("Otis"), he slipped on masonite decking placed on the lobby floor within the premises known as 70 Pine Street, New York, New York.^[FN1] The subject premises was owned and managed by defendants/third-party plaintiffs American International Realty Corp., AIG Realty, Inc., and Pine Street Real Estate Holdings Corp. (hereinafter collectively refered to as "AIG). AIG contracted with Otis to maintain, repair, and service the elevators within the building. Pursuant to a separate contract between AIG and second third-party defendants ABM Industries, Inc., ABM Janitorial Services, and American Building Maintenance Co. (hereinafter collectively referred to as "ABM"), ABM was retained by AIG to provide internal janitorial services within the subject building, as well as to provide three elevator starters. These starters were responsible for directing visitors to the appropriate elevators as well as notifying Otis about any mechanical problems with the elevator.

Plaintiff, an experienced elevator mechanic and licensed elevator inspector, alleges that on the date of his accident he arrived at the subject premises to perform a five year load test on "passenger elevator No.4". In order to perform the test, it was necessary for plaintiff to place six carts full of weights on and off the elevator, which required plaintiff to roll the carts onto the marble lobby floor of the building. According to plaintiff, before he rolled the carts into the building's lobby, he was instructed by an elevator starter to cover the floor with masonite to prevent marring the marble. Plaintiff then indicated to the starter that he wanted to tape the masonite to the floor. The starter contacted AIG's senior building manager who advised the starter to instruct plaintiff to put down the masonite without tape. Plaintiff thereafter proceeded to place the masonite on the floor without tape and remove the carts loaded with weights from the elevator. Plaintiff further asserts that while he was rolling the carts, the masonite "slipped underneath his feet" causing him to fall and sustain injuries. [*2]

Procedural History

Plaintiff commenced this action against AIG on March 1, 2005. The complaint contained four causes of action, namely, common law negligence and violations of §§ 200, 240(1) and 241(6) of the Labor Law. AIG in turn commenced a third-party action against Otis seeking recovery on the basis of contribution, common law indemnification, and contractual indemnification. Otis commenced a second third-party action against ABM Industries, Inc., ABM Janitorial Services, and American Building Maintenance Co. (hereinafter collectively referred to as "ABM"). ABM's answer contained a counterclaim over and against Otis for contribution and common law indemnification.

By notice of motion dated March 6, 2007, Otis seeks judgment as a matter of law dismissing AIG's cause of action against Otis for contribution, common law indemnification and contractual indemnification; dismissing ABM's counterclaim against Otis for contribution and common law indemnification, or in the alternative, granting summary Judgment to Otis over and against ABM on the contribution and common law negligence grounds; and, dismissing the plaintiff's complaint. By notice of motion dated March 9, 2007 defendants/third-party plaintiffs ABM moved for summary judgment dismissing the third-party complaint asserted against it.

Plaintiff's Labor Law §§ 240(1) and 241(6) claims

Otis' motion for summary judgment dismissing plaintiff's claim for Labor Law violations §§ 240(1) and 241(6) is granted.

Pursuant to the maintenance contract between Otis and AIG, Otis was to perform testing of all the elevators within the subject premises. In his complaint, plaintiff alleges that on the date of his accident he was performing "elevator work including a load test." Plaintiff's complaint ¶ 51. Section 240(1) of the labor law provides that

"All contractors and owners and their agents, except owners

of one and two-family dwelling who contract for but do not [*3]

direct or control the work, in the erection, demolition, repairing,

altering, painting, cleaning, or pointing of a building or

structure, shall furnish, erect or cause to be furnished or

erected for the performance of such labor, scaffolding,

hoists, stays, ladders, slings, hangers, blocks, pulleys, braces,

irons, ropes, and other devices which shall be so

constructed, placed and operated as to give proper

protection to a person so employed."

Thus, in granting workers the extraordinary protections provided by the Scaffold Law, the Court must analyze two connected issues; namely, the nature of the work being performed and the protective device afforded to the worker. Hargobin v. K.A.F.C.I. Corp., 282 AD2d 31 (1st Dept. 2001). If the work performed by the worker is beyond the scope of erection, demolition, repairing,

altering, painting, cleaning, or painting of a building, the worker will not have a viable claim under Labor Law § 240(1).This is so since "[i]n the view of the strict liability imposed by Labor Law § 240(1) , the statutory language must not be strained in order to encompass what the Legislature did not intend to include." Schreiner v. Cremosa Cheese Corp., 202 AD2d 657, 658 (2nd Dept. 1994).

As the Court of Appeals has noted, Section 240(1) only applies to the enumerated activities of the statute, namely, "erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure." Esposito v. New York City Industrial Development Agency, 305 AD2d 108 (1st Dept. 2003), aff'd 100 NY2d 526 (2003). Moreover, New York Courts have drawn a distinction between what constitutes repair under the statute, and what constitutes "routine maintenance", which does not fall within the protective umbrella of the statute. See Jehle v. Adams Hotel Assoc., 264 AD2d 354 (1st Dept. 1999); see also Barbarito v. County of Tompkins, 22 AD3d 937 (3rd Dept. 2005) citing Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46 (2004) ("the fact that the job arises from a service call, rather than a regularly scheduled maintenance, is not sufficient to render it repair work.").

The type of work being performed by plaintiff when his accident occurred does not trigger the protection of Labor Law § 240(1). Plaintiff testified, and it is uncontroverted, that he was not repairing the subject elevator, but rather, was performing "routine maintenance", i.e. the load test, as per the contract between Otis and AIG. Nor can it be said that the activity in which plaintiff was engaged [*4]implicated elevated risks contemplated by the statute. The masonite from which plaintiff fell was about 1/8th of an inch thick and thus did not create "an elevation-related risk of the kind that the safety devices listed in Section 240(1) protect against." Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681 (2007); see also Rocovich v. Consolidated Edison, 78 NY2d 509 (1991) (statute applies to those hazards related to the effects of gravity where protective devices are required). Thus, "summary judgment in favor of [Otis] is proper because the evidence in this record demonstrates as a matter of law that plaintiff did not here need protection from the effects of gravity." Broggy, supra, 8 NY3d at 682.

Labor Law § 241(6) provides, in pertinent part, that "[a]ll areas in which construction, excavation, or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein." (Emphasis added). Thus, in enacting the statute, the Legislature intimated an intent to protect "workers from industrial accidents specifically in connection with construction, demolition or excavation work." Nagel v. D&R Realty Corp., 99 NY2d 98 (2002). Here, it is undeniable that plaintiff was not engaged in construction, excavation, or demolition in any respect with regard to the subject premises. Esposito, supra, 305 AD2d at 114 ("As it is uncontested that plaintiff was not working on a "construction, demolition [or] excavation" project, Nagel precludes any claim under Labor Law § 241(6)"). In any event, "[i]n order to state a claim under Labor Law § 241(6), a plaintiff must identify a specific Industrial Code provision mandating compliance with concrete specifications." Reily v. Newirenn Associates, 303 AD2d 214, 218 (1st Dept. 2003); see also Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 (1993). Plaintiff has failed to do so.

Plaintiff's Labor Law § 200 and common law negligence claims

Plaintiff's two remaining causes of action are for common law negligence and Labor Law § 200 violation. Labor Law § 200 is a codification of the already existing common-law duty of an owner or employer to provide employees with a safe work environment. Jock v. Fien, 80 NY2d 965 (1992). The statute specifically provides, in pertinent part, that "[a]ll machinery, equipment, and devices in such places shall so be placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons." Labor Law § 200. (Emphasis added).

"An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the [*5]injury to enable it to avoid or correct an unsafe condition." Russin v. Picciano, 54 NY2d 311, 317 (1981). Thus, plaintiff has the burden to present evidence of the defendant's supervision and control of the activity in question, Terranova v. City of New York, 197 AD2d 402 (1st Dept. 1993), and plaintiff must prove that defendant had notice of the condition, either actual or constructive. Long v. Battery Park City Authority, 295 AD2d 204 (1st Dept. 2002). With these principles in mind, the Court now turns to plaintiff's common law negligence and Labor Law § 200 causes of action against AIG as well as Otis' summary judgment to dismiss those claims.

Initially, plaintiff alleges in his action against defendants/third-party plaintiff that he slid on the masonite placed on the floor as a result of AIG refusing to secure the masonite. Indeed, plaintiff does not allege that his accident was in anyway related to elevator #4 on which he was performing the load test. Rather, plaintiff affirmatively testified at his deposition that the elevator was in no way connected to his slip. Plaintiff also testified that the condition of the floor did not contribute to his fall, testifying that the floor was not "slick" or "slippery." (Testimony of Kenneth Kuhn, April 24, 2006, p. 84, lines 7-8.).

In fact, plaintiff maintains that he was provided masonite as well as tape by Otis to perform the load test. Plaintiff was notified by a starter that he would have to place masonite on the floor before he began the test. Plaintiff complied with the request and stated he would need to secure the masonite with tape. As noted earlier, the starter then contacted AIG's senior building manager who refused to allow plaintiff to use the tape. Thus, while Otis concedes that it generally has the responsibility to supervise its employees, here, it was AIG that directed the manner in which plaintiff was to perform his duties. Plaintiff was fully equipped with masonite (AIG also had its own masonite in the basement of the subject premises) and tape, and testified it was customary for him to secure masonite with tape. However, upon the insistence of AIG's senior building manager, he did not do so in this instance.

Thus the circumstances of plaintiff's slip demonstrate that it was AIG, not Otis, that was supervising plaintiff's work. That is, AIG, through its senior building manager, directed where, when, and how the masonite was to be used and placed on the marble floor. Curiously, the very next day after his accident, plaintiff returned to the building to complete testing of the remaining elevators, and he was not required to cover the floor with masonite. (Testimony of Kenneth Kuhn, April 24, 2006, p. 127, lines 11-25; p. 128, lines 1-2). Thus, it is clear that it was defendants/third-party plaintiffs AIG who controlled and supervised plaintiff.

Furthermore, there is an issue of fact as to whether or not AIG was responsible in creating the dangerous condition, namely the unsecured masonite, which resulted in plaintiff's fall and attendant injuries. There is no evidence in the record that Otis was in anyway responsible for the alleged accident. As such, Otis' motion for summary judgment dismissing defendants/third-party plaintiff's complaint containing causes of action for contribution, common law indemnification against Otis is granted. [*6]

AIG's contention that it is nevertheless entitled to indemnification from Otis pursuant to their contract is without merit. The plain language of the contract at page 8, ¶ 24 under subheading "Insurance Coverage" states that Otis agrees to indemnify and hold harmless AIG "to the extent caused by [Otis'] negligent acts or omissions." As noted, there is no evidence in the record that Otis was negligent. Significantly, as required by the maintenance agreement, and subsequent to plaintiff's accident, plaintiff completed testing of all elevators in the building, prepared and signed an Elevator Inspection Test Report also singed by AIG's property manager, and which was subsequently filed with the Department of Buildings on June 13, 2002.

ABM's summary judgment motion

ABM likewise, moves for summary judgment on the grounds that it did not owe a duty to plaintiff, and even if it did, it did not create the dangerous condition of which plaintiff complains, and dismissing Otis's complaint against it. ABM's motion is granted.

Plaintiff does not claim that the floor in and of itself, which is cleaned by ABM pursuant to ABM's contract with AIG to provide janitorial services, contributed to his accident. Plaintiff, in fact, specifically testified that the floor was not "slick" or "slippery," and the record supports his contention. Moreover, even if this were alleged by plaintiff, "[t]he mere fact that a floor has been rendered "slippery". . . is not sufficient to support a claim of negligence. Gootman v. Village of Haverstraw, 200 AD2d 829 (3rd Dept. 1994). It is not in dispute that the starter who directed plaintiff to place the masonite on the floor without securing it with tape was retained by ABM pursuant to its contract with AIG. Additionally, however, it is also not in dispute that it was AIG's senior building manager who instructed the starter to direct plaintiff to place the masonite without securing it with tape.

While the placing of the masonite on the floor by itself is not an inherently dangerous condition, Tresgallo v. Danica, LLC, 286 AD2d 326 (2nd Dept. 2001), there is an issue of fact as to whether defendant AIG, through the directions of its senior building manager, was negligent in explicitly refusing to let plaintiff secure the masonite to the floor while rolling the load carts. Each test cart used in performing the 5 year load test weighs 500 pounds and is rectangular in shape, has two rear wheels, and is moved by tilting it by its handle located in the back of the cart. Thus, while the mere placing of the masonite on the floor in an of itself does not create a dangerous condition, there is an issue of whether rolling such heavy carts which need to be tilted without securing the masonite to the floor created a hazardous condition. See Ferber v. Treeline Garden City Plaza, LLC, 16 AD3d 453 (2nd Dept. 2005) (summary judgment inappropriate where genuine issue of fact existed as to whether building owner and construction company that taped masonite to building's floor knew of alleged dangerous condition created by deterioration of tape holding down masonite board). [*7]

Finally, based upon New York State case law, a contractual obligation between two parties such as AIG and Otis, standing alone, generally does not give rise to liability in favor of a third party such as plaintiff in this action. Espinal v. Melville Snow Contrs., 98 NY2d 136 (2002). Rather, the Court of Appeals has outlined three situations wherein a party who executes a contract to perform certain services, like ABM, may be potentially liable to a third party. These are: (1) where the contracting party has failed to exercise reasonable care and thus has launched a force or instrument of harm; (2) where the third-party has detrimentally relied on the continued performance of the contracting party; and (3) where the contracting party has completely displaced the other party's duty to maintain a safe premises. Id. at 140; see also Moch Co. v. Rensselear Water Co., 247 NY 160 (1928); Eaves Brooks Costume Co. v. Y.B.H. Ralty Corp., 76 NY2d 220 (1990); Palka v. Servicemaster Mgt. Servs. Corp., 83 NY2d 579 (1994).

Here, as noted, there is no evidence in the record that ABM was in any way negligent in the performance of its duties, as supported by plaintiff's own testimony that the floor was in no way responsible for his slip and fall. Furthermore, there is no allegation, much less any support for the argument, that plaintiff in someway detrimentally relied on the continued performance of ABM's janitorial duties. Nor can it be said that ABM entirely displaced AIG's duty to maintain the subject premises in a safe condition. Granted, plaintiff was instructed by a elevator starter employed by ABM to place the masonite without tape on the marble floor. However, the starter was given this instruction to relay to plaintiff directly from AIG's senior manager. This "contractual undertaking is not the type of "comprehensive and exclusive" property maintenance obligation contemplated by" the Court of Appeals. Espinal, supra, 98 NY2d at 141.

Conclusion

Based upon the foregoing facts and relevant law, it is hereby

ORDERED that third-party defendant/second third-party plaintiff Otis Elevator Company's motion to dismiss plaintiff's complaint is GRANTED to the extent of dismissing plaintiff's causes of action for Labor Law § 240(1) violation and for Labor Law § 241(6) violation; and it is further

ORDERED that third-party defendant/second third-party plaintiff Otis Elevator Company's motion to dismiss defendants/third-party plaintiff American International Realty Corp., AIG Realty Inc., and Pine Street Real Estate Holdings Corp.'s causes of action against Otis for contribution, common law indemnification and contractual indemnification is GRANTED; and it is further

ORDERED that third-party defendant/second third-party plaintiff Otis Elevator Company's motion for summary judgment over and against second third-party defendants ABM [*8]Industries, Inc., ABM Janitorial Services, and American Building Maintenance Co. is DENIED; and it is further

ORDERED that second third-party defendants ABM Industries, Inc., ABM Janitorial Services, and American Building Maintenance Co.'s motion to dismiss third-party defendant/second third-party plaintiff Otis Elevator Company's claim for contribution and indemnification against it is GRANTED.

This constitutes the Decision and Order of the Court.

Dated: October 5, 2007ENTER

__________________________Rolando T. Acosta, J.S.C.