[*1]
Romero v City of New York
2015 NY Slip Op 50197(U) [46 Misc 3d 144(A)]
Decided on February 23, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 23, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-1120 Q C

Nicholas Alberto Romero, Appellant, The

against

City of New York and THE CITY OF NEW YORK DEPARTMENT OF EDUCATION, Respondents.


Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 28, 2013. The order, insofar as appealed from as limited by the brief, denied a motion by plaintiff for summary judgment on his Labor Law § 240 (1) cause of action, and granted the branches of defendants' motion seeking summary judgment dismissing the causes of action based on common law negligence and Labor Law §§ 200 and 240 (1).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action based on negligence and Labor Law sections 200, 240 (1) and 241 (6), plaintiff seeks to recover damages for injuries sustained in the basement of a school owned by defendant The City of New York and operated by defendant The New York City Department of Education. Plaintiff moved for partial summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action. Defendants moved for summary judgment dismissing the complaint. As limited by his brief, plaintiff appeals from so much of an order of the Civil Court entered March 28, 2013 as denied his motion and granted the branches of defendants' motion seeking summary judgment dismissing the causes of actions based on common law negligence and Labor Law §§ 200 and 240 (1).

Labor Law § 240 (1) applies where an employee is engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Although "repairing" is among the enumerated activities, the courts have distinguished repair from "routine maintenance," which is not a covered activity (Smith v Shell Oil Co., 85 NY2d 1000, 1002 [1995]). Plaintiff was injured on defendants' premises when he fell off of a milk crate while replacing a motor on a six-foot oven, which motor was worn out due to wear and tear. Consequently, the work performed by plaintiff at the time of the accident constituted routine maintenance, rather than repair (see Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 53 [2004]; Smith v Shell Oil Co., 85 NY2d 1000 [1995]; Jani v City of New York, 284 AD2d 304 [2001]; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311 [1997]; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592 [1993]). Moreover, the motor was not a "structure" within the meaning of Labor Law § 240 (1), as it was not part of the building and did not affect the structural integrity of the building (see Chuchuca v Redux Realty, 303 AD2d 239 [2003]). In view of the foregoing, plaintiff's motion for partial summary judgment on that cause of action was properly denied and the branch of defendants' motion seeking summary judgment dismissing the Labor Law § 240 (1) cause of action was properly granted.

Moreover, the Civil Court properly dismissed the causes of action based on Labor Law § 200 and common law negligence, as plaintiff failed to rebut defendants' showing that they did not exercise any supervision or control over plaintiff's work (see Comes v New York State Elec. & [*2]Gas Corp., 82 NY2d 876 [1993]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Elliot, JJ., concur.


Decision Date: February 23, 2015