Kostyo v. Schmitt & Behling, LLC

Memorandum: Plaintiffs commenced this common-law negligence and Labor Law action to recover damages for injuries sustained by Steven Kostyo (plaintiff) when he fell from the front porch roof of a rental property owned by defendant and rented by plaintiff Karen Kostyo, plaintiffs wife. At the time of

We conclude that the court erred in granting defendant’s motion with respect to the Labor Law § 240 (1) claim on the ground that plaintiff was performing only routine maintenance at the time of the accident (cf. Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 , 882 [2003]). We therefore modify the order accordingly. “[Delineating between routine maintenance and repairs is frequently a close, fact-driven issue” (Pakenham v Westmere Realty, LLC, 58 AD3d 986 , 987 [2009]), and we conclude on the record before us that there is a question of fact precluding summary judgment on that issue. “[I]n order for work to constitute a ‘repair’ under Labor Law § 240 (1), there must be proof that the . . . object being worked upon was inoperable or not functioning properly” (Goad v Southern Elec. Intl., 263 AD2d 654 , 655 [1999]). Here, plaintiffs raised a question of fact whether plaintiff was in fact repairing the window by their submission of evidence that the window on which plaintiff was working was not “functioning properly” (id.), i.e., it required securing because there was a risk that the window would fall out of the frame in the event that the window was opened (see generally Short v Durez Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972 , 972-973 [2001]).

We further agree with plaintiffs that defendant failed to establish as a matter of law that the actions of plaintiff were the sole proximate cause of his injuries. Thus, it cannot be said at this juncture of the litigation that “there is no view of the evidence ... to support a finding that the [undisputed] absence of [any] safety devices was not a proximate cause of the injuries” (Zimmer v Chemung County Performing Arts, 65 NY2d 513 , 524 [1985], rearg denied 65 NY2d 1054 [1985]). Present — Scudder, EJ., Peradotto, Carni, Green and Gorski, JJ.