Jones v. Bartlett

—Order unanimously affirmed without costs. Memorandum: We agree with plaintiff that defendants should have moved to amend their answer to assert the defense based on Workers’ Compensation Law § 29 (6) before including that defense as one of the bases for their motion for summary judgment dismissing the amended complaint (see, Cole v Rappazzo Elec. Co., 267 AD2d 735 , 738; see also, Murray v City of New York, 43 NY2d 400 , 404-406, rearg dismissed 45 NY2d 966 ). We conclude, however, that Supreme Court nevertheless properly granted defendants’ motion and denied plaintiff’s cross motion for summary judgment on liability on the Labor Law § 240 (1) and § 241 (6) causes of action. Plaintiff’s decedent was hanging a banner from a sign frame when he fell from his ladder and thus he was not engaged in work protected by Labor Law § 240 (1) (see, Cook v Parish Land Co., 239 AD2d 956 ; cf., Izrailev v Ficarra Furniture, 70 NY2d 813 [involving work on an electric sign affixed flat against a building wall]; Neville v Deters, 175 AD2d 597 [involving replacement of permanent sign affixed to a building]). Nor was the work of plaintiff’s decedent protected by Labor Law § 241 (6) because the injuries of plaintiff’s decedent did not result from an accident in which construction, demolition or excavation work was being performed (see, Vasey v Pyramid Co., 258 AD2d 906 , 907; Cook v Parish Land Co., supra; Walton v Devi Corp., 215 AD2d 60 , lv denied 87 NY2d 809 ). The court properly granted summary judgment dismissing the common-law negligence cause of action because defendants established that they were out-of-possession landlords who did not retain control of the premises and were not contractually obligated to maintain or repair the premises (see, Baker v Getty Oil Co., 242 AD2d 644 , 645, lv denied 93 NY2d 801 ). Contrary to plaintiff’s contention, the retention by defendant Bart-Rich Properties, a lessor, of the right to inspect the premises is insufficient to raise a question of fact on this issue (see, Dalzell