Majority
p. 714Pedro Bautista, Appellant, v 165 West End Avenue Associates, L.P., Defendant, and The 165 West End Avenue Condominium et al., Respondents/Third-Party Plaintiffs-Respondents. Lyn Blacksberg, Third-Party Defendant-Respondent. (And Another Third-Party Action.) [27 NYS3d 384]
Judgment, Supreme Court, New York County (Debra A. James, J.), entered February 28, 2014, insofar as appealed from as limited by the briefs, dismissing the Labor Law § 241 (6) claim as against defendant 165 West End Avenue Owners Corp. (Owners), unanimously affirmed, without costs.
Plaintiff allegedly was injured when a screw that he was removing in the course of replacing window balances in a cooperative apartment unit “jumped” and struck him in the
p. 715
eye. Plaintiff is correct that his work replacing window balances constitutes “maintenance” pursuant to Industrial Code (12 NYCRR) § 23-1.4 (b) (13). However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241 (6) claim was correctly dismissed (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]; Martinez v Morris Ave. Equities, 30 AD3d 264 [1st Dept 2006]).
Concur—Tom, J.P., Sweeny, ManzanetDaniels, Gische and Gesmer, JJ.
Cases cited
- Esposito v. New York City Industrial Development Agency 1 NY3d 526 p. 715
- Martinez v. Morris Ave. Equities 30 AD3d 264 p. 715