Santiago v Fred-Doug 117, L.L.C.

Santiago v Fred-Doug 117, L.L.C. 2009 NY Slip Op 09369 [68 AD3d 555] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Nelson Santiago et al., Respondents,
v
Fred-Doug 117, L.L.C., et al., Appellants. (And a Third-Party Action.)

—[*1] Malapero & Prisco, LLP, New York (Frank J. Lombardo of counsel), for appellants.

Proner & Proner, New York (Tobi R. Salottolo of counsel), for respondents.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered on or about March 31, 2009, which, to the extent appealed from as limited by the brief, granted plaintiffs' motion for summary judgment on the issue of liability under Labor Law § 240 (1) and denied defendants' motion for summary judgment dismissing the Labor Law § 240 (1) cause of action, unanimously modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.

Labor Law § 240 (1) imposes a duty to protect workers engaged in "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." While "repair" of a broken or malfunctioning item is among the statute's enumerated activities, "routine maintenance" to prevent malfunction is not covered activity (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]; see Craft v Clark Trading Corp., 257 AD2d 886, 887 [1999]). Plaintiff testified that he went to the Rite Aid pharmacy in response to a service call that the air conditioning was broken. The Rite Aid manager confirmed that he had called Concept, plaintiff's employer, to have the air conditioning fixed because the front of the store was excessively hot. However, the Concept service manager testified that he had dispatched plaintiff to the Rite Aid that day to complete maintenance work begun three days earlier. A Concept work order and invoice also indicate that plaintiff was doing maintenance work, changing filters and belts, and cleaning coils on three HVAC units to prevent future problems. These discordant versions of the facts preclude a determination, as a matter of law, as to whether plaintiff was doing covered repair work or nonactionable routine maintenance on the date of his accident.

Assuming a factfinder determines that plaintiff was involved in covered repair work, the evidence raises the further issue of whether plaintiff's own actions were the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]; Lovall v Graves Bros., Inc., 63 AD3d 1528, 1530 [2009]; Lopez v Bovis Lend Lease LMB, Inc., 26 AD3d 192 [2006]; Meade v Rock-McGraw, Inc., 307 AD2d 156 [2003]). Plaintiff testified that he was standing on an open eight-foot A-frame ladder placed sideways and secured about a foot from an open door to the Rite Aid manager's office, and that the store manager [*2]bumped the ladder as he squeezed past plaintiff to exit the office. Plaintiff stated that he fell off the ladder when it was bumped a second time, and after falling, he saw that the manager had reentered his office. In contrast, the store manager testified that he saw plaintiff lean a closed ladder against the wall, unsecured, that he warned plaintiff that this was not safe, and that plaintiff replied that he knew what he was doing. He also testified that while the ladder blocked the doorway to his office, there was enough space for him to get through. This testimony raises the factual issue of whether plaintiff misused an otherwise adequate ladder by leaning it, unsecured, against the wall, after which the ladder slipped as he was moving on top of it. Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and RomÁn, JJ.