Upon the foregoing papers, plaintiff William A. Owens moves, pursuant to CPLR 3212, for summary judgment against defendants the City of New York (the City) and the New York City Department of Education (DOE) (collectively defendants) under his Labor Law §§ 240 (1) and 200 causes of action. Defendants cross-move for summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) claims in their entirety and dismissing plaintiff's Labor Law § 200 claim against the City.

On August 28, 2006, plaintiff sustained injuries in a ladder-fall accident that occurred at Public School 345 in Brooklyn (the school), which was owned by the City and controlled by DOE. At the time of the accident, plaintiff was employed as a "Fireman" by the school's custodial engineer, Chijoke Fred who, in turn, was employed by the DOE.^[FN1] Among other things, plaintiff was responsible for maintaining the school's boilers, waxing floors, cleaning, painting, and performing various odd-jobs around the school. The school itself is comprised of three floors for classrooms, as well as a basement and sub-basement where the boilers are located. In the sub-basement, a metal ladder permanently bolted to the wall runs vertically up the wall to a ten-inch-wide sill/landing and metal door approximately 10 feet above the floor of the sub-[*2]basement. The doorway then opens out to an "areaway" beneath the sidewalk abutting the school which is covered with a steel grating. A second permanently-affixed ladder leads from the floor of the areaway to a two-foot by two-foot gate in the grating which opens up onto the sidewalk.

At approximately 7:00 P.M. on the accident date, plaintiff was leaving the school at the end of his workday when he noticed that the lock on the gate to the areaway grating was broken. Plaintiff determined that he needed to secure the gate before he left for the night in order to prevent trespassers and/or vandals from gaining access to the school via the unlocked gate. Accordingly, plaintiff opened the grating gate and climbed down the ladder into the areaway and proceeded to walk toward the doorway that led to the second ladder, which in turn led to the sub-basement/boiler room. Plaintiff then noticed that the door was ajar and would not fully close. According to plaintiff, this was not an unusual occurrence inasmuch as the door was old and warped. In this regard, plaintiff testified at his examination before trial and 50-h hearing that as a result of this warping, the primary locking mechanism (i.e., the lock turned by the doorknob) failed to function properly. Consequently, in order to keep the door closed, plaintiff installed a secondary lock that consisted of a bolting mechanism attached to the door which slid into a metal bracket on the doorframe. Plaintiff testified that during his 30 years of working at the school, he had replaced this sliding lock approximately six times. In any event, at this point, plaintiff determined that, in addition to securing the grating gate, he also needed to fix the door so that it could be closed completely.

Plaintiff then climbed down the second ladder to the sub-basement where he retrieved tools and materials that he needed to perform the work, including a cordless drill, a wrench, and nuts and bolts. Thereafter, plaintiff re-climbed both ladders and managed to temporarily secure the grating gate by bolting the gate closed and then bending the bolt.^[FN2] Plaintiff then turned his attention to the door. Specifically, plaintiff scraped rust and debris from the edges of the door in order to provide extra room for the door to close. Then, while standing with his right foot on the second rung of the ladder, his left foot on the sill/landing in front of the door, and one hand holding onto the ladder's handrail, plaintiff grabbed the doorknob with his free hand and attempted to slam the door closed so that he could drill new holes for a properly aligned sliding lock mechanism on the door.^[FN3] However, the force from slamming the door caused the doorknob to completely break off. As a result, plaintiff lost his balance and fell off the ladder to the floor [*3]of the sub-basement some ten feet below.

By summons and complaint dated December 27, 2006, plaintiff commenced the instant action against the City and DOE alleging violations of Labor Law §§ 240 (1), 241 (6), and 200. Discovery is now complete and the instant motions are before the court.

Plaintiff moves for partial summary judgment against defendants under his Labor Law § 240 (1) cause of action. In so moving, plaintiff maintains that the work that he was performing at the time of the accident constituted repair work under the statute and therefore, his accident falls within the ambit of Labor Law § 240 (1). In support of this claim, plaintiff cites to certain case law which holds that repairing a non-functioning door is covered under the statute.

Plaintiff further argues that the ladder from which he fell was defective as a matter of law and said defects in the ladder caused him to fall. In support of this argument, defendant submits an expert affidavit by William Marletta, Ph.D., a Certified Safety Professional who performed an inspection of the accident site on October 4, 2007. According to Dr. Marletta, the permanently affixed ladder from which plaintiff fell was defective and otherwise failed to comply with several Occupational Safety and Health Authority (OSHA) regulations and American National Standards Institute (ANSI) standards. In particular, Dr. Marletta maintains that OSHA § 1910.27(d)(2)(iii) and ANSI Standard 14.3 require that the top rung of a permanently affixed wall ladder be level with the landing at the top of the ladder. However, the ladder involved in the instant case had a top rung which was situated approximately ten inches below the sill/landing in front of the door. Similarly, Dr. Marletta avers that OSHA § 1910.27(b)(ii) and ANSI Standard 14.3 require that the same rung spacing used on the ladder be used between the landing platform to the rung below the landing. The instant ladder had rungs which were 12 inches apart but there was only 10 inches of space between the top rung and the sill/landing. In addition, Dr. Marletta notes that OSHA § 1910.27(c)(4) and ANSI Standard 14.3 require that there be a minimum of seven inches clearance between the ladder and the nearest fixed object. Here, the ladder was obstructed for several inches above the top rung with virtually no clearance. Dr. Marletta also states that OSHA § 1910.27(d)(2)(ii) and ANSI Standard 14.3 required that for all fixed ladders, all landing platforms must be not less than twenty-four inches wide. Here, the sill/landing at the top of the ladder was only 10 inches wide. Finally, Dr. Marletta avers that, it is his opinion within a reasonable degree of certainty, these departures from applicable codes and standards were a proximate cause of the accident.

In opposition to this branch of plaintiff's motion, and in support of their own motion to dismiss plaintiff's Labor Law § 240 (1) cause of action, defendants argue that the work that plaintiff was performing at the time of the accident was not protected under the statute. In particular, defendants maintain that the replacement of a single slide lock on a door does not constitute a significant physical change to the configuration of a building so as to qualify as an alteration under the statute. Defendants also argue that the task plaintiff performed was not the type of repair work covered under Labor Law § 240 (1). In particular, defendants point to the fact that the slide lock was merely a component of the door that served as a secondarily locking mechanism. Further, plaintiff admitted that he had replaced this lock some six times prior to the accident. Thus, according to defendants, plaintiff was merely replacing a worn-out component which amounts to routine maintenance that is not covered under the statute. Finally, defendants [*4]argue that, as a matter of sound public policy, the simple and rudimentary replacement of a basic slide lock serving as a secondary lock to the main lock on a door is not entitled to the extraordinary protections of Labor Law § 240 (1) inasmuch as it would set a precedent where virtually every minor repair, alteration, or replacement performed at an elevation would fall under the purview of the statute.

Alternatively, defendants argue that even if his work is covered under Labor Law § 240 (1), plaintiff is not entitled to summary judgment under this claim. In particular, defendants point out that the ladder was permanently affixed to the wall and plaintiff has failed to present any evidence that the ladder moved, shifted, or collapsed. Under the circumstances, defendants maintain that the question of whether the ladder was an inadequate safety device under the statute is for the jury to determine notwithstanding plaintiff's claims of various OSHA and ANSI violations. In this regard, defendants note that plaintiff has failed to cite to any authority for the proposition that an OSHA or ANSI violation may serve as the predicate for awarding summary judgment under Labor Law § 240 (1). Similarly, defendants argue that plaintiff has failed to establish that these alleged violations proximately caused the accident. Finally, defendants aver that, given the fact that plaintiff slammed the door so hard so as to cause the doorknob to come off, there is an issue of fact as to whether plaintiff's own actions were the sole proximate cause of the accident.

Labor Law § 240(1) provides in pertinent part that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, [or] altering . . . of a building or structure shall furnish or 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."

Labor Law § 240(1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners, general contractors, and their agents who "are best situated to bear that responsibility" (id. at 500; see also Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). "The duty imposed by Labor Law § 240(1) is nondelegable and . . . an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work" (Ross at 500). Furthermore, the statute is to be construed as liberally as possible in order to accomplish its protective goals (Martinez v City of New York, 93 NY2d 322, 326 [1999]). However, "[n]ot every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law § 240 (1)" (Narducci v Manhasset Bay Assocs., 96 NY2d 259, 267 [2001]). Rather, only those accidents proximately caused by a Labor Law § 240 (1) violation will result in the imposition of liability under the statute (Blake v Neighborhood Hous. Services of New York City, 1 NY3d 280, 287 [2003]).

As a threshold matter, the court must determine whether the work that plaintiff was [*5]performing at the time of the accident is covered under Labor Law § 240 (1). In this regard, it is undisputed that work took place in a non-construction, non-renovation context. Furthermore, the mere replacement or realignment of the existing lock on the door did not constitute the type of "significant physical change to the configuration or composition of the building or structure" so as to qualify as an "altering" under the statute (Joblon v Solow, 91 NY2d 457, 465 [1998]). Thus, the issue before the court is whether or not plaintiff's work qualifies as "repairing" under Labor Law § 240 (1).

There is no "bright line" rule regarding what tasks constitute repair work covered under Labor Law § 240 (1), and what activities are deemed to be "routine maintenance," which is not covered. Rather, "the question of whether a particular activity constitutes a repair' or routine maintenance' must be determined on a case-by-case basis" (Riccio v NHT Owners, LLC., 51 AD3d 897, 899 [2008]). In making such determinations, courts must weigh various factors including the complexity and scope of the work. Thus, the mere replacement or tightening of a screw or pin in the arm of a nonmotorized "door closer" does not constitute repair work under Labor Law § 240 (1) (Thompson v 1701 Corp., 51 AD3d 904 [2008]). In contrast, replacing the entire door track on a malfunctioning elevator or replacing the bands on an automatic door constitute covered repair work (Riccio, 51 AD3d at 899; Lofaso v J.P. Murphy Assocs., 37 AD3d 769, 771 [2007]). Another factor which must be weighed is whether or not the job involves the replacement of a missing, malfunctioning, or worn out component. Such work is ordinarily deemed to be routine maintenance (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; Deoki v Abner Properties Co., 48 AD3d 510 [2008]; English v City of New York, 43 AD3d 811 [2007]; Barbarito v County of Tompkins, 22 AD3d 937 [2005]).

The court finds that plaintiff's work in replacing/repositioning the sliding lock on the door constituted routine maintenance. In so finding, the court notes that this task merely involved fixing a malfunctioning component of the door, namely the secondary sliding lock mechanism. Moreover, this task had to be performed on a periodic basis inasmuch as plaintiff testified that he had replaced the secondary lock on six prior occasions. Furthermore, although more involved than merely tightening a screw or replacing a pin (Thompson, 51 AD3d at 904), the job of replacing or realigning the sliding lock was a relatively simple task that required no special skills or expertise (compare Gallello v Marj Distributors, Inc., 50 AD3d 734 [2008] [screwing metal sheets over six-inch by six-inch holes in gutter, sealing the sheets with caulk, and then painting over the metal sheets constitutes routine maintenance]). Accordingly, plaintiff's Labor Law § 240 (1) claim must be dismissed inasmuch as plaintiff was not engaged in an activity protected under the statute at the time of the accident.

The court further notes that even if plaintiff's activity was protected as repair work under the statute, plaintiff would not be entitled to summary judgment under his Labor Law § 240 (1) cause of action. In particular, plaintiff testified that he fell from the permanently affixed ladder when the doorknob unexpectedly broke loose and caused him to lose his balance. Plaintiff did not testify that the ladder moved or was inadequately secured. Moreover, although plaintiff's expert cites to several OSHA violations and deviations from ANSI standards, it cannot be said, as a matter of law, that these violations proximately caused the accident or that compliance with these provisions would have prevented plaintiff from falling. Under the circumstances, the question of whether the ladder provided proper protection and whether the injured worker should [*6]have been provided with additional safety devices is for the jury to determine (Artoglou v Gene Scappy Realty Corp., 57 AD3d 460 [2008]; Olberding v Dixie Contr., Inc., 302 AD2d 574 [2003]).

Given the court's determination that the work plaintiff was performing at the time of the accident constituted routine maintenance, plaintiff's Labor Law § 241 (6) claim must also be dismissed inasmuch as "neither the statute nor the allegedly aforementioned Industrial Code provisions are applicable outside the contexts of construction, demolition, or excavation" (Gallello, 50 AD3d at 736; see also Oster v Truck King Inter., 60 AD3d 832 [2009]).

Plaintiff moves for summary judgment against defendants under his Labor Law § 200 cause of action. In support of this branch of his motion, plaintiff relies upon Dr. Marletta's aforementioned affidavit. Specifically, plaintiff contends that, as evidenced by the OSHA and ANSI violations set forth in Dr. Marletta's affidavit, the ladder constituted a dangerous and hazardous condition at the school. Plaintiff further maintains that defendants clearly had notice of this dangerous condition inasmuch as the ladder was situated on the premises for at least 37 years prior to the accident date. Plaintiff also points out that Dr. Marletta opined that defendants violated New York City Building Code §§ 27-127 and 27-128 inasmuch as the doorknob was improperly attached, mounted, maintained, and inspected as demonstrated by the fact that it broke off when plaintiff slammed the door.

In opposition to this branch of plaintiff's motion, and in support of their own cross motion to dismiss plaintiff's Labor Law § 200 claim against the City, defendants point out that, although the City owns the school, by virtue of § 521 of the New York City Charter, it retains no control over the building. Instead, the Board of Education/DOE retains exclusive control over the public school buildings in New York City including P.S. 345. According to defendants, absent such control over the school, there is no basis for holding the City liable under a Labor Law § 200 or a common-law negligence theory. Defendants further note that, notwithstanding the fact that 2002 amendments to the Education Law provide for greater mayoral control of City schools and created the DOE, recent case law has established that these changes are insufficient to allow the imposition of liability against the City for torts occurring on school grounds.

With respect to plaintiff's claims against the DOE, defendants argue that plaintiff is not entitled to summary judgment under his Labor Law § 200 cause of action. In this regard, defendants note that even if the ladder failed to comply with relevant OSHA regulations and ASNI standards, violations of these provisions merely constitute some evidence of negligence, which is insufficient to allow for the imposition of summary judgment. Furthermore, with respect to the doorknob, defendants maintain that plaintiff has failed to establish that they had notice of, or otherwise created any defect in the knob which caused it to detach from the door. In particular, defendants note that plaintiff testified that he did not experience prior problems with the doorknob and had no recollection of complaining about the apparatus prior to the accident. At the same time, defendants argue that, inasmuch as plaintiff's expert never inspected the subject doorknob, his claim that it was inadequately maintained in violation of Administrative Code §§ 27-127 and 27-128 is speculative and may not serve as a basis for awarding plaintiff's summary judgment. Finally, defendants argue that plaintiff's admission that he slammed the door [*7]"as hard as I could" immediately prior to the accident raises questions of comparative negligence.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the plaintiff's work, or who have actual or constructive notice of an accident-causing unsafe condition (Bradley, 21 AD3d at 868; Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]). Specifically, "[w]here a premises condition is at issue, property owners [and contractors] may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, 57 AD3d 54, 61 [2008]). On the other hand, "when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had authority to supervise or control the performance of the work" (id.). Absent such authority, no liability attaches even when the owner or general contractor has notice of the unsafe manner in which the work was performed (id.).

Turning first to defendant's cross motion to dismiss plaintiff's Labor Law § 200 claim against the City, it is true, as defendants point out, that the City may not be held liable for the negligent maintenance of City schools or torts committed by the Board of Education/DOE or its employees since the City does not operate, maintain, or control the public schools (Leacock v City of New York, 61 AD3d 827 [2009]; Perez v City of New York, 41 AD3d 378 [2007], lv denied 10 NY3d 708 [2008]; Goldes v City of New York, 19 AD3d 448 [2005]). However, like any out-of-possession landlord, the City may be held liable for a dangerous condition on school grounds which it affirmatively created (Bleiberg v City of New York, 43 AD3d 969, 971 [2007]).

Here, plaintiff's Labor Law § 200 claim is not entirely premised upon inadequate maintenance of the door handle. Plaintiff also alleges that, in and of itself, the permanently affixed ladder presented a dangerous condition. Specifically, plaintiff claims and has presented expert testimony which indicates that, among other things, there was an inadequate amount of space on the landing between the top of the ladder and the door, that the ladder was dangerous inasmuch as its top rung was not level with the landing in front of the door, and that the ladder presented a hazard in that there was inadequate clearance between the top rungs of the ladder and the wall to which it was affixed. Further, plaintiff testified that the ladder remained unchanged during the 30 years that he worked at the school and City has failed to present any evidence demonstrating that the alleged dangerous conditions associated with the ladder arose after it handed control of the school over to the Board of Education or DOE. Under the circumstances, there are issues of fact regarding whether the City created the dangerous condition presented by the ladder (Bleiberg, 43 AD3d at 970-971). Accordingly, that branch of defendants' motion which seeks summary judgment dismissing plaintiff's Labor Law § 200 claim against the City is denied.

With respect to plaintiff's motion for summary judgment under his Labor Law § 200 claim, although it is theoretically possible for a plaintiff to obtain summary judgment on a Labor Law § 200 cause of action (see Pichardo v Urban Renaissance Collaboration Ltd., 51 AD3d [*8]472, 473 [2008]), it is extremely rare for courts to award such relief. This is because there are almost always issues of fact regarding such matters as proximate cause, comparative negligence, notice of a dangerous condition, and/or control over the plaintiff's work which can only be resolved by a jury. The instant case is no exception to this rule.

In particular, although plaintiff has presented evidence that the ladder failed to comply with several OSHA regulations and ANSI standards, it is well-settled that violating rules set by such administrative bodies merely constitutes "some evidence" of negligence and may not serve as a basis for awarding plaintiff summary judgment (Cruz v Long Is. R.R., 22 AD3d 451, 453 [2005]; Barzaghi v Maislin Transp., 115 AD2d 679, 683 [1985]). Furthermore, it cannot be said, as a matter of law, that these alleged violations proximately caused the accident (see Reiff v Beechwood Browns Rd. Bld. Corp., 54 AD3d 1015 [2008]). Plaintiff testified that he fell from the ladder after the doorknob unexpectedly broke loose and caused him to lose his balance. There is nothing within this testimony which would allow the court to definitively rule that the lack of clearance between the ladder and the wall or the placement of the top rung of the ladder 10 inches below the landing played a role in the accident. Similarly, the court cannot rule, in summary fashion, that an extra 14 inches in the width of the landing would have prevented the accident. These are issues for the trier of fact.

With respect to the doorknob, it is clear that the accident was proximately caused by the breakage of this apparatus. However, plaintiff (who is the movant) has failed to present any evidence that defendants had actual or constructive notice or otherwise caused any defect in the doorknob that caused it to break. Furthermore, the conclusory claim of plaintiff's expert that defendants were negligent in their maintenance of the doorknob is too speculative to support plaintiff's motion for summary judgment given the fact that he never inspected the device (DiGregorio v Fleet Bank of NY, 60 AD3d 722 [2009]).

Accordingly, that branch of plaintiff's motion which seeks summary judgment against defendants under his Labor Law § 200 cause of action is denied.

In summary, the court rules as follows: (1) that branch of plaintiff's motion which seeks summary judgment under his Labor Law § 240 (1) cause of action is denied; (2) those branches of defendants' cross motion which seeks summary judgment dismissing plaintiff's Labor Law §§ 240 (1) and 241 (6) causes of action are granted; (3) that branch of defendants' cross motion which seeks summary judgment dismissing plaintiff's Labor Law § 200 cause of action as against the City is denied; and (4) that branch of plaintiff's motion which seeks summary judgment under his Labor Law § 200 cause of action is denied.

This constitutes the decision and order of the court.

ENTER,

___________________

Robert J. Miller

J. S. C.