Picaro v New York Convention Ctr. Dev. Corp.

Picaro v New York Convention Ctr. Dev. Corp. 2012 NY Slip Op 05789 Decided on July 31, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 31, 2012
Tom, J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ.
7881 113352/08

[*1]Pasquale A. Picaro, Plaintiff-Respondent-Appellant,

v

New York Convention Center Development Corporation, et al., Defendants-Appellants-Respondents, United Rentals, Inc., Defendant.




McGaw Alventosa & Zajac, Jericho (Ross P. Masler of
counsel), for appellants-respondents.
The Feld Law Firm P.C., New York (John G. Korman of
counsel), for respondent-appellant.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered November 15, 2011, which, to the extent appealed from as limited by the briefs, denied the motion of defendants New York Convention Center Development Corporation (CDC) and New York State Urban Development Corporation d/b/a Empire State Development Corporation (UDC) insofar as they sought summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and denied plaintiff's motion for partial summary judgment on the issue of liability on that claim, unanimously modified, on the law, to grant defendants' motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint against defendants CDC and UDC.

Plaintiff house electrician was engaged in routine maintenance work when he fell from a ladder affixed to a scissor lift after fixing a light fixture (see Monaghan v 540 Inv. Land Co. LLC, 66 AD3d 605 [2009]). Indeed, plaintiff testified that he fixed light fixtures about twice weekly, that "nine out of ten times" the house electricians would change the whole fixture when performing such work, and that he retrieved sockets and bulbs from the building's storage area in order to perform his work. Further, his subforeman stated in an affidavit that the high-voltage nature of the lights caused the sockets to deteriorate, requiring them to be replaced on a regular basis, which necessitated keeping a large volume of sockets in stock on the premises. [*2]Accordingly, plaintiff's work clearly involved "replacing components that require replacement in the course of normal wear and tear" (Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 31, 2012

CLERK