Fiallos v Vin's Crown Realty Assoc.

[*1] Fiallos v Vin's Crown Realty Assoc. 2008 NY Slip Op 52657(U) [22 Misc 3d 1122(A)] Decided on December 10, 2008 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2008
Supreme Court, Kings County

Henry Fiallos, Plaintiff,

against

Vin's Crown Realty Associates, Shimshon Stock, Edison Flooring, Edison Lopez d/b/a Edison Flooring and Penciou Shenpov, Defendants.



1809/06



Plaintiff:

Brecher, Fishman, Pasternack

233 Broadway Suite 820

New York, NY 10279

Defendant:

Lester, Schwab,Katz, and Dwyer

120 Broadway

New York, NY 10271

Francois A. Rivera, J.

Upon the foregoing papers, defendant Vin's Crown Realty Associates (defendant) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiff Henry Fiallos' (plaintiff) complaint.

This action arises out of an incident that occurred on August 13, 2004 in Apartment 3C at 1703 Union Street in Brooklyn (the subject premises). Defendant is the owner of the subject premises. Plaintiff alleges that he was injured in a flash fire that occurred while he was sanding and applying lacquer to the hardwood floors in the apartment. Plaintiff was employed by Edison Lopez d/b/a Edison Flooring (Edison) on the date of the incident.

In his examination before trial, plaintiff testified that he did not know who hired Edison to do the work at the subject premises. Plaintiff also indicated that he arrived at Edison's place of [*2]business on the day of the accident and was sent to the subject premises with another worker named "Henry," whose last name he did not know. According to plaintiff, upon arriving at the subject premises he and Henry were admitted into the building by a "security guard" who had a key and who knew where they were to go. Plaintiff stated that the "security guard" was not wearing a uniform and that he did not know who the man worked for. Plaintiff testified that the man accompanied them to Apartment 3C and let them into the apartment with a key already in his possession. According to plaintiff, Henry spoke to the man in English both before they entered the building and on their way to the subject apartment. As plaintiff was not fluent in English, he testified that he did not understand what was spoken nor did he ask Henry what the man said to him. The "security guard" did not return to the apartment after letting the men in to do their work.

According to plaintiff, the apartment appeared vacant. Plaintiff testified that the stove in the kitchen looked as if it had been moved and there were garbage bags in the kitchen near the appliances. Plaintiff testified that he did not see Henry check any of the appliances for an open flame, nor did Henry instruct him to do so. Plaintiff testified that he and Henry were hired to sand and refinish the hardwood floors of the apartment. Plaintiff had never done this type of work before and he testified that did not receive any instruction from his employer regarding the process of lacquering prior to his accident. At some point after plaintiff swept the apartment for sanding and Henry began to sand and lacquer the floors, Henry indicated to plaintiff that he had to leave the apartment. Henry asked plaintiff to apply the lacquer himself after briefly instructing him how to do so. According to plaintiff, he had been applying the lacquer for approximately five minutes when he heard a "whistling" sound from the kitchen and saw the fire moving towards him. He fled through an open window onto the fire escape. Plaintiff testified that he did not know the cause of the fire and that he was alone when the fire started.[FN1] Plaintiff alleges that as a result of the flash fire, he sustained significant third degree burns when vapors emanating from the floor lacquer were ignited.

According to the deposition testimony of Hersch Zarchi (Zarchi), a managing agent for the subject premises employed by Carbrook Management, defendant did not contract with Edison to refinish the hardwood floors. Zarchi stated that Carbrook Management (Carbrook) was hired by defendant to manage the residential building where the subject apartment was located, and that Carbrook performed duties that included, inter alia, collecting rent, handling tenant complaints, arranging for repairs, and renting the individual apartments. Zarchi testified that it was the responsibility of Carbrook to make sure that the apartments were clean and that appliances were in working order prior to new tenants occupying the apartments. Zarchi stated that this included freshly painting each apartment for new tenants. Zarchi further testified that both a custodian and a superintendent were employed at the subject premises. The custodian, "Hakir," had keys to the common areas and was responsible for the daily cleaning of the premises. The superintendent, "Homza," was responsible for repairs in the apartments, among other things. According to Zarchi, [*3]the superintendent did not have keys to the individual apartments. However, he noted that sometimes tenants would give their keys to Homza after moving out of their apartment and that Homza would then have to return the keys to the management office. Zarchi testified that if someone needed to be let into an apartment to do any work, they were required to come to the management office to request a key. Zarchi also admitted that the superintendent might keep a key if, for example, he knew that a painter needed access. According to Zarchi, Homza had to request permission from management to hire an outside contractor to perform work at the subject premises. He also testified that after a tenant moved out, the procedure was for a managing agent to inspect the apartment and to approve any necessary work to prepare the apartment for the next tenant. According to Zarchi, there were times when a tenant might have been given access to an apartment prior to their lease start date.

Zarchi testified that he did not know who hired Edison, but that whomever did so must have provided access to the apartment. Zarchi stated that defendant had never hired anyone to sand and lacquer the floors of any of the apartments in the building, but that some tenants had taken it upon themselves to refinish the floors. Although this type of work was prohibited by the lease without the express written permission of the property owner,[FN2] Zarchi admitted that, in the past, tenants had refinished the floors without obtaining prior permission. Zarchi testified that he did not know whether the apartment was vacant when the accident occurred. However, he subsequently affirmed that the apartment was fully occupied by tenants at the time of the incident. Zarchi testified that the subject apartment was rented to Chana and Bentzion Shemtov for the period of September 3, 2004 to October 1, 2005. Zarchi affirmed that there was no construction, excavation or demolition underway at the subject premises at the time of the incident and that defendant had not hired plaintiff or Edison to sand or lacquer the floors of the subject apartment. He further testified that neither defendant nor Carbrook Management had permitted, or even knew, that Edison was refinishing the floors of the subject apartment.

Plaintiff commenced this action by summons and complaint on or about January 17, 2006 claiming that defendant was liable on the basis of its status as owner of the residential building in which the accident occurred. Plaintiff alleges that his injury was caused by a "defective unsecured and unsafe condition" and that defendant and/or its agents or employees had actual or constructive notice of said defective condition. Specifically, plaintiff alleges, inter alia, that defendant failed to ensure proper ventilation of the subject apartment and failed to ensure that there were no open flames at the work site. Plaintiff's complaint states causes of action under Labor Law § § 240(1),[FN3] 241(6), 200 and common-law negligence. Defendant answered on or about April 12, 2006, conceding that it owned the building in which the accident occurred, but denying all other allegations of the [*4]complaint.

In its motion, defendant argues that it is entitled to summary judgment dismissing plaintiff's complaint because the evidence establishes that defendant did not supervise the manner and means by which plaintiff did his work and, therefore, it cannot be held liable under either Labor Law § 200 or common-law negligence theories. Moreover, defendant contends that plaintiff's Labor Law § 241(6) claim should be dismissed because plaintiff was not engaged in "construction, demolition or excavation" work when the accident occurred. Defendant maintains that "construction, demolition and excavation" work is the only type of work covered by Labor Law § 241(6) and, thus, the statute is inapplicable to the facts of the instant case. In this regard, defendant notes that plaintiff was not installing a new floor but, rather, sanding and lacquering the existing floors of the apartment.[FN4] In support of its motion, defendant submits a sworn affidavit by his attorney as well as an affirmation by Zarchi [FN5] in which he states that there was no construction, excavation or demolition underway at the subject premises at the time of the incident and that defendant had not hired plaintiff or Edison to sand or lacquer the floors of the subject apartment. Zarchi further affirms that neither defendant nor Carbrook Management had permitted, or even knew, that Edison was refinishing the floors of the subject apartment. In its memoranda of law submitted in support of summary judgment, defendant argues that even if an employee of defendant had opened the door for plaintiff and allowed him into the building and into the subject apartment, this would be insufficient to raise an issue as to defendant's alleged supervision and control of plaintiff's work.

In opposition, plaintiff argues that defendant "has failed to meet its burden to prove that there are no relevant questions of fact so as to be entitled to summary judgment." Plaintiff contends that Zarchi's affirmation should be disregarded by the court because as a party, or the representative of a party, to an action, he should not be permitted to submit an affirmation in lieu of a required affidavit in support of a motion for summary judgment. Plaintiff further argues that, even if the affidavit is accepted by the court, the affidavit is still not in compliance with CPLR 3212(b) which requires that the affidavit ". . . shall recite all the material facts; and it shall show that . . . the cause of action . . . has no merit." Plaintiff notes that the affirmation is "significantly deficient in its recital of the material facts of this case" and that material facts are omitted which "bear directly on defendant's credibility, knowledge, supervision, control and direction of the subject." Moreover, plaintiff states that, although defendant claims there was no construction work being performed in the apartment, defendant's production of two job work orders, one for plastering and painting the [*5]apartment two days before the plaintiff's accident and another for the repair of the intercom system and the installation of a new call box panel "belies the assertion that the owner was not engaged in the active renovation and repair of the subject apartment." In support of its contention that Zarchi's affidavit should be disregarded by the court, plaintiff notes that Zarchi is not an owner, officer or director of defendant but, rather, a managing agent of Carbrook Management. Plaintiff also notes Zarchi's testimony that he was not present at the subject premises on the date of the accident. Contrary to defendant's motion papers, plaintiff alleges that the subject apartment was vacant and in the process of being renovated by the owner for occupancy by the new tenant who was to take possession in September 2004. Plaintiff argues that, although defendant denies that a renovation of the apartment was taking place, evidence of such renovation was provided in the form of the work orders for painting, plastering and the intercom repair. Plaintiff avers that work orders for the alleged renovation raise a triable issue of fact as to the applicability of Labor Law § 241(6). Regarding the dismissal of plaintiff's Labor Law § 241(6) claims, plaintiff maintains that the work that the plaintiff was engaged in falls squarely within the ambit of Labor Law § 241(6). Plaintiff notes that in determining whether a particular activity falls within the definition of "construction work," courts are guided by the definition set forth in 12 NYCRR 23-1.4(b)(13) which includes "[a]ll work of the type performed in the construction, erection, alteration, repair, maintenance, painting, or moving of buildings or other structures." Plaintiff distinguishes the cases cited by defendant in support of its argument that there was no "construction work" being performed at the subject premises, and further argues that, unlike the instant case, the cases cited by defendant involve the visual inspection of an elevator (see Nagel v D & R Realty Corp., 99 NY2d 98 [2002]), the removal of an air conditioner cover (see Esposito v New York City Indus. Development Agency, 1 NY3d 526 [2003]) and the replacement of a light bulb (see Deoki v Abner Properties Co., 48 AD3d 510 [2008]) rather than the sanding and lacquering of a wood floor. Moreover, plaintiff submits a copy of the verified bill of particulars in which he sets forth specific Industrial Code sections that serve as the predicate for his Labor Law § 241(6) cause of action. Plaintiff notes that defendant has proffered no evidence to show that the stated Industrial Code sections are either nonspecific or inapplicable. Plaintiff cites an additional issue of fact with respect to defendant's alleged negligence and the role played by defendant's workers at the building (the superintendent and custodian) and what, if any, instructions they provided to Henry prior to the commencement of the work. Plaintiff argues that defendant and/or its agents and employees failed to advise plaintiff and his co-worker of the fact that gas service in the apartment was not turned off; something that the owner knew or should have known since defendant was responsible for providing gas service to the apartment. Moreover, regarding plaintiff's Labor Law § 200 and common-law negligence causes of action, plaintiff argues that the only evidence proffered by defendant to advance its position is the testimony of Zarchi who stated that he could not recall if he was in the building on the date of the accident and who testified that he had not heard about the accident until the commencement of the instant action. Plaintiff asserts that Zarchi's deposition testimony is inadmissible hearsay based on information gleaned from both another managing agent working for Carbrook, and the building superintendent, neither of whom were deposed. Plaintiff claims that Zarchi "offers no testimony concerning what he actually knows about any other defendant employee's, including [the superintendent's], interaction with the plaintiff or his co-worker."

In reply, defendant contends that there is no merit to plaintiff's claim that Zarchi's affirmation [*6]is deficient because of its form as an affirmation rather than a sworn affidavit or that Zarchi was the managing agent of the building and not the owner. Defendant cites the provisions of CPLR 2309 to establish that the affirmation is sufficient because it was solemnly stated and notarized. Further, defendant notes that Zarchi was the witness selected and produced for deposition on behalf of defendant without protest from plaintiff. According to defendant, Zarchi also stated that he had the required personal knowledge of the facts to which he affirmed. In addition, defendant alleges that plaintiff has failed to rebut either the facts or the cases it cited, "and the only cases cited by plaintiff pre-date the most recent Court of Appeals and Second Department cases which hold that Labor Law § 241(6) is limited to construction, excavation or demolition work." Defendant argues that there is no merit to plaintiff's claim that since painting and an intercom repair were performed in the subject apartment before and after the incident that this somehow presents an issue of fact. To that effect, defendant notes that the Appellate Division, Second Department has specifically rejected the argument that the size or significance of the work during which the accident occurred can bring it within the coverage of Labor Law § 241(6) when it would otherwise not be covered (see Irizarry v State, 35 AD3d 665 [2006]). Defendant maintains that proof that other work was done in the apartment does not prove that the plaintiff was doing "construction, excavation or demolition" work covered by Labor Law 241(6). Defendant further avers that plaintiff focused on the narrow facts of the cases cited by defendant in distinguishing them, rather than on their broad holdings, namely that Labor Law § 241(6) applies only to "construction, demolition, and excavation" work and that even if plaintiff was grinding, sanding and applying lacquer, he was still not engaged in "construction, demolition or excavation" work. Defendant claims that recent Second Department cases have held that work allegedly similar to the work plaintiff was performing was not covered by Labor Law § 241(6).[FN6] Finally, defendant reiterates that plaintiff's Labor Law § 200 and common-law negligence claims should be dismissed because plaintiff has failed to rebut defendant's showing that it did not supervise the manner and means by which he did his work. According to defendant, plaintiff instead mistakenly argues that Zarchi is not a qualified witness. Defendant notes that plaintiff testified that he took direction only from his employer and co-worker Henry and that plaintiff was alone in the apartment at the time of his accident. Defendant also points out that Zarchi testified and affirmed with his personal knowledge as the building manager that neither Vin nor Carbrook hired Edison or plaintiff to refinish the hardwood floors of the subject apartment.

Regarding plaintiff's claim that Zarchi's affidavit should be disregarded, the court finds that plaintiff's argument that the affirmation is not in the proper form is unavailing. "[A]ny person who, for religious or other reasons, wishes to use an affirmation as an alternative to a sworn statement may do so. However, to be effective such an affirmation must be made before a notary public or other authorized official. Otherwise, the affirmation would be of no probative value because the affirmant [*7]would not be answerable for the crime of perjury" (Slavenburg Corp. v Opus Apparel, Inc., 53 NY2d 799, 801 [1981]). While Zarchi's affirmation does not contain the word "sworn," Zarchi states that he has personal knowledge of the facts stated and he affirms the truth of his statements under the penalties of perjury and pursuant to CLPR 2309. Furthermore, Zarchi's affirmation is notarized. Consequently, Zarchi's affirmation is admissible and of probative value to demonstrate, inter alia, Zarchi's knowledge of defendant's alleged lack of control and supervision over the plaintiff's work.

Accordingly, the court will consider Zarchi's affirmation in determining the merits of defendant's motion for summary judgment.

Turning to that branch of defendant's motion for summary judgment which seeks to dismiss plaintiff's Labor Law § 200 and common-law negligence causes of action, the court notes defendant's argument that, based on the testimony of plaintiff and Zarchi, it is uncontroverted that defendant did not supervise or control plaintiff's work at the subject premises. Because it did not have the necessary level of control, defendant contends that it cannot be held liable under Labor Law § 200 or the common law. Defendant does not specifically address whether it created the alleged dangerous condition of the open flame or whether it had actual or constructive notice of said condition, but, rather, maintains that it had no knowledge of any kind that Edison was performing any work at the subject premises.

Labor Law § 200 provides, in relevant part:

"All places to which this chapter applies shall be constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein . . ."

Labor Law § 200 is a codification of an owner's or general contractor's common-law duty to maintain a safe work place (see Lombardi v Stout, 80 NY2d 290, 294 [1992]). Liability under Labor Law § 200 will attach when the injury sustained was a result of an actual dangerous condition and then only if defendant (1) exercised supervision or control over plaintiffs work on the premises (see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 352-53 [1998]), or (2) had actual or constructive notice of, or created, an unsafe condition that produced the injury (see Sobelman v Norstar Bank, 226 AD2d 444 [1996]).

Although the parties discuss the issue of supervision and control, or lack thereof, on defendant's part, "that standard applies in Labor Law § 200 cases which involve injuries resulting from the means and methods of the work" (Keane v Chelsea Piers, L.P., 16 Misc 3d 1116(A), *8 [2007]; see also McLeod v Corp. Of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 41 AD3d 796 [2007] [where negligence arose from the manner in which work was performed at a site, a general contractor must have actually exercised supervision and control over the work performed to be held liable under Labor Law § 200]). Here, however, plaintiff's injuries arose from a purported unsafe condition present at the work site. In such a case, the proponent of a Labor Law § 200 claim must demonstrate that the defendant created or had actual or constructive notice of the allegedly unsafe condition that caused the accident (see Kerins v Vassar College, 15 AD3d 623, 626 [2005]).

To give rise to constructive notice, "a defect must be visible and apparent and it must exist [*8]for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v Am. Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Andrini v Navarra, 49 AD3d 575, 575 [2008]). Further, "[t]he notice must call attention to the specific defect or hazardous condition and its specific location, sufficient for corrective action to be taken" (Mitchell v New York University, 12 AD3d 200 [2004]). "[A] general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition" (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994], citing Gordon, 67 NY2d at 838; see also Kleinberg v City of New York, 17 Misc 3d 1116(A) [2007]).

Here, the court finds that defendant has failed to state a prima facie case of entitlement to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes of action. While defendant maintains that it had no knowledge of plaintiff's work, that it did not arrange for Edison's entry into the building and that it did not supervise or control the manner or methods of plaintiff's work, defendant fails to affirmatively show that it had no notice of the dangerous condition alleged by plaintiff. Moreover, issues of fact regarding whether defendant hired Edison to refinish the floors preclude the granting of summary judgment. Zarchi testified that defendant was responsible for supplying gas to the apartment. The Fire Incident Report submitted by plaintiff cited the cause of the fire as an open flame which ignited the flammable vapors of the lacquer. It is undisputed that plaintiff was applying lacquer to the floor at the time of his accident. Although, in and of itself, the pilot light was not a dangerous condition, the combination of the lit pilot light and the flammable lacquer was a dangerous condition. Since issues of fact remain as to who hired Edison, it is unclear whether defendant knew, or should have known, that plaintiff was using lacquer near an open flame at the time of the accident (see Ford v Luigi Caliendo & Sons, Inc., 305 AD2d 368 [2003][where the plaintiff sustained injuries when the vapors of a floor sealant he was using were ignited by an oven pilot light; issues of fact existed as to whether the defendant knew or should have known of the alleged dangerous condition on the property which precluded summary judgment dismissing plaintiff's Labor Law § 200 cause of action]. Although defendant has presented evidence in the form of Zarchi's testimony that it did not hire Edison and that the apartment was occupied by a tenant at the time of the accident, there is evidence contradicting these claims. Specifically, plaintiff testified that the apartment was vacant at the time of his accident. The lease submitted by the parties indicates that the new tenants did not sign a lease for the subject apartment until September 3, 2004, approximately one month after the accident. Zarchi admitted, and work orders show, that defendant/Carbrook hired a painter the week before the accident and an electrician one week after the accident. Plaintiff further testified that a "security guard" let him into the building and that the guard possessed a key to the subject apartment, indicating that he was expecting them.[FN7] In light of the foregoing, a jury could find that defendant hired Edison to refinish the hardwood floors of the subject apartment. Actual notice that the floors were being refinished, in combination with actual or constructive notice of the lit pilot light could establish plaintiff's entitlement to a Labor Law § 200 and common-law negligence claim.

Accordingly, that branch of defendant's motion which seeks to dismiss plaintiff's Labor Law § 200 and common-law negligence causes of action is denied. [*9]

Defendant also moves for summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action. The court finds that defendant is entitled to summary judgment granting this branch of its motion for summary judgment. In so holding, the court recognizes that Labor Law §241 (6) provides in pertinent part that:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to persons employed therein or lawfully frequenting such places."

Labor Law § 241 (6), which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (see Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502 [1993]). "To support a cause of action under Labor Law § 241 (6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" (Rivera v Santos, 35 AD3d 700, 702 [2006], citing Ross, 81 NY2d at 502).

The threshold question that must be answered is whether the plaintiff was engaged in a type of work which falls within the scope of Labor Law § 241 (6), specifically, whether the injury occurred in an area "in which construction, excavation or demolition work is being performed" (Labor Law § 241 [6]) or whether the work being performed fell under the definition of "construction work." The scope of Labor Law § 241 (6) is governed by 12 NYCRR 23-l.4(b)(13), which defines "construction work" as: "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures." This definition of "construction work" (12 NYCRR 23-1.4 [b][ii][13] "must be construed consistently with [the] Court's understanding that § 241(6) covers Industrial accidents that occur in the context of construction, demolition and excavation" (Nagel v D & R Realty Corp., 99 NY2d 98, 103 [2002]). Routine maintenance activity is not the type of construction work falling within the ambit of protection under Labor Law § 241(6) (see Nagel, 99 NY2d at 99 [where a laborer was injured while performing a two-year safety test on an elevator, since the protections of Labor Law § 241 (6) do not apply to claims arising out of maintenance of a building or structure outside of the construction context, such claims must fail]).

The court finds that defendant has established its prima facie entitlement to summary judgment by demonstrating that plaintiff was not performing "construction, demolition or excavation" work at the time of his accident (see e.g. Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003][Labor Law 241(6) was not applicable where the injury occurred during a monthly check on an air conditioning unit not in the context of construction, demolition or excavation]; English v City of New York, 43 AD3d 811 [2007][where an investigation into a missing fan belt in a heating and cooling system was not construction, demolition or excavation work, Labor Law § 241(6) was inapplicable]; Bedneau v New York Hosp. Med. Ctr. of Queens, 43 AD3d 845 [2007]; Holler v City of New York, 38 AD3d 606 [2007]; Anderson v Olympia & York Tower B Co., 14 AD3d 520 [2005]). The court finds that plaintiff's work in refinishing the existing floors is representative of maintenance to the apartment rather than construction (see e.g. Martinez v Morris Ave. Equities, 30 AD3d 264 [2006][Plaintiff's Labor Law § 241 (6) claim was properly dismissed [*10]since the work he was performing at the time of the alleged accident, i.e., repairing a window in an existing apartment, constituted maintenance, not construction, demolition or excavation of a building or structure]). Specifically, plaintiff's work was more akin to "cosmetic maintenance or decorative modification" than to construction (see Hatfield v Bridgedale, LLC, 28 AD3d 608, 609 [2006][where plaintiff fell while applying an advertisement to the face of a billboard on defendant's building, this non-structural change was deemed "cosmetic maintenance or decorative modification" and not "construction." The court held that both Labor Law § § 240(1) and 241(6) were inapplicable.] ; see also Maes v 408 W. 39 LLC, 24 AD3d 298 [2005], Anderson v Schwartz, 24 AD3d 234 [2005] lv. denied 7 NY3d 707 [2006]). Defendant established that plaintiff's act of sanding and lacquering the floor does not rise to the level of "construction work" contemplated by Labor Law § 241(6), and that no other construction work was being performed at the subject premises at the time of the accident.

In response to this prima facie showing, plaintiff fails to raise a triable issue of fact precluding the granting of summary judgment. The court finds that the work orders showing that painting and repair of an intercom were performed before and after the incident are not dispositive evidence that "construction work" was being performed at the time of plaintiff's incident. The painting of the apartment and the repair of the intercom are consistent with Zarchi's testimony that apartments in the subject building were inspected and prepared for new tenants by freshly painting the walls and repairing any non-working appliances. As a result, the work orders fail to raise an issue of fact as to plaintiff's performance of any "construction work." There is also no affirmative evidence to support plaintiff's contention that the floor sanding and lacquering performed by the plaintiff were part of some larger construction project at the subject premises (compare Tornello v Beaver Brook Assoc., LLC, 8 AD3d 7 [2004][where the installation of carpet as part of the process of finishing a new house was deemed "construction work" and, therefore, fell within the protective ambit of Labor Law § 241(6)];compare also Shields v. General Elec. Co., 3 AD3d 715 [2004][plaintiff was engaged in the fabrication and welding of stainless steel duct work that was to be installed in a rail car unloading building that was then under construction; since plaintiff was engaged in work on defendant owner's property connected to construction of rail car unloading building, Labor Law § 241 (6) was applicable].

Accordingly, that branch of defendant's motion which seeks summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action is granted.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Defendant submits a Fire Incident Report in support of its motion for summary judgment which indicates that the cause of the fire was under investigation at the time of the report. However, in his opposition papers plaintiff submits a follow-up Fire Incident Report which states that the cause of the fire was an open flame (stove/oven pilot light) that ignited the vapors of the floor lacquer.

Footnote 2:Specifically, the lease provided: "No alteration, addition, or improvements shall be made in or to the premises without the prior consent of the Landlord in writing."

Footnote 3:Plaintiff concedes that Labor Law § 240(1) is inapplicable to the facts of the instant case and, therefore, withdraws that branch of his complaint which states a Labor Law § 240(1) cause of action. Consequently, all arguments regarding the applicability of Labor Law § 240(1) in the parties' motion and opposition papers will not be addressed by the court.

Footnote 4:The court notes that defendant withdraws that branch of its motion which sought dismissal of plaintiff's Labor Law § 241(6) cause of action on the ground that plaintiff was working on the premises without defendant's knowledge or permission. In this regard, defendant had relied on Sanatass v Consolidated Investing Co., 38 AD3d 332 [2007] which was overruled by the Court of Appeals subsequent to defendant filing its motion (see Sanatass v Consolidated Investing Co., 10 NY3d 333 [2008]). As a result, the court will disregard this branch of defendant's motion as well as plaintiff's related opposition.

Footnote 5:Defendant's religious beliefs preclude him from making a sworn statement. The affirmation submitted by defendant was made before a notary and states that defendant is answerable for the crime of perjury for false statements in the affirmation.

Footnote 6:Defendant cites work not protected by Labor Law 241(6) to include: replacing a worn out component (see Deoki v Abner Properties Co., 48 AD3d 510 [2008], patching holes in gutters (see Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2007]), inspecting a missing fan belt (see English v City of New York , 43 AD3d 811 [2007]), repairing a leaking boiler (see Bedneau v New York Hosp. Medical Center of Queens, 43 AD3d 845, 846 [2007]), installing a hoist motor (see Holler v City of New York, 38 AD3d 606, 607 [2007]) and replacing air conditioner parts (see Anderson v Olympia & York Tower B Co., 14 AD3d 520, 521 [2005]).

Footnote 7:On this point the court notes Zarchi's testimony that, in some instances, the superintendent might retain apartment keys if he knew that a contractor needed access to an apartment.