Kircher v City of New York

Kircher v City of New York 2014 NY Slip Op 07951 Decided on November 18, 2014 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 November 18, 2014
Friedman, J.P., Acosta, Saxe, Manzanet-Daniels, Gische, JJ.
13513 100527/09

[*1] Timothy Kircher, Plaintiff-Respondent,

v

The City of New York, et al., Defendants-Appellants.

Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for appellants.

Hach & Rose, LLP, New York (Michael A. Rose of counsel), for respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered February 24, 2014, which granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) cause of action, unanimously reversed, on the law, without costs, and the motion denied.

The motion court correctly concluded that the flooring on which plaintiff was working, which was comprised of wooden planks with gaps between them seven stories above the bottom of a shaft below, confronted plaintiff with an elevation-related hazard to which Labor Law § 240(1) is applicable, regardless of whether the flooring was permanent (see Jones v 414 Equities LLC, 57 AD3d 65, 79-80 [1st Dept 2008]; Carpio v Tishman Constr. Corp. of N.Y., 240 AD2d 234, 235-236 [1st Dept 1997]). Triable issues of fact exist, however, as to whether the work in which plaintiff was engaged when his accident occurred constituted routine maintenance or a repair covered under the statute (see Montalvo v New York & Presbyt. Hosp., 82 AD3d 580 [1st Dept 2011]; see also Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 18, 2014

CLERK