Guevera v. Simon Property Group, Inc.

In an action to recover damages for personal injuries, etc., the plaintiff Ignacio Guevera appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated July 2, 2013, which denied his motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1) and granted the defendants’ cross motion for summary judgment dismissing the complaint, and the plaintiff Blanca Naranjo also appeals from the order.

Ordered that the appeal by the plaintiff Blanca Naranjo is dismissed as abandoned (see 22 NYCRR 670.8 [e]); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants/ third-party plaintiffs.

The plaintiff Ignacio Guevera (hereinafter the plaintiff), an employee of the third-party defendant Country Wide Electric,

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240 (1) by offering proof that the plaintiff was involved in routine maintenance rather than repair and, therefore, the plaintiffs activity did not fall within the protection of that provision of the Labor Law (see Smith v Shell Oil Co., 85 NY2d 1000 [1995]; Deoki v Abner Props. Co., 48 AD3d 510 , 510-511 [2008]; Houchang Haghighi v Bailer, 240 AD2d 368 [1997]; cf. Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 , 883 [2003]; Fox v H&M Hennes & Mauritz, L.P., 83 AD3d 889 [2011]; Fitzpatrick v State of New York, 25 AD3d 755 , 756 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact (see Deoki v Abner Props. Co., 48 AD3d at 510-511 ).

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241 (6). The plaintiff was not involved in the activity of construction, excavation, or demolition, and the statute does not protect workers involved in maintenance or replacement of parts (see Nagel v D & R Realty Corp., 99 NY2d 98 , 103 [2002]; Deoki v Abner Props. Co., 48 AD3d at 511 ; Irizarry v State of New York, 35 AD3d 665 , 666 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact.

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. The defendants demonstrated, prima facie, that they neither created nor had notice of the loose cable that al

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240 (1), and properly granted the defendants’ cross motion for summary judgment dismissing the complaint. Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.