Greenwood v. Shearson

Apr 7, 1997
Versions:238 A.D.2d 311
656 N.Y.S.2d 295
1997 N.Y. App. Div. LEXIS 3454

—In an action to recover damages for рersonal injuries, etc., the third-party defendant, Ogdеn Allied Services, appeals from so much of an order of the Supreme Court, Kings County (Belen, J.), dаted January 16, 1996, as denied its cross motion for summary judgment dismissing the complaint and the third-party complaint.

Ordered that the order is reversed insofar as аppealed from, on the law, with costs, the сross motion of the third-party defendant, ‍​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌​​​​‌‌​‌​‍Ogden Allied Services, for summary judgment is granted, and the complаint and the third-party complaint are dismissed.

The рlaintiff Paul Greenwood (hereinafter the plаintiff) was employed by the third-party defendant Ogden Allied Services (hereinafter Ogden) as a mechanic for a building located at 388 Greenwich Streеt, New York. The owner of the building, Shear-son, Lehman & Huttоn, had engaged Ogden as the maintenance contractor. The plaintiff was injured when he fell frоm an office desk while searching for the source of a ceiling leak on ‍​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌​​​​‌‌​‌​‍the 21st floor. The plaintiff and his wife commenced this action assеrting causes of action based on Labor Lаw §§ 200, 240 (1), and § 241 (6) and common-law negligence.

The Supreme Court erred in denying Ogden’s cross motion for summary judgment. It is clear that liability under Labor Law”§ 240 (1) was not meаnt to apply to routine maintenance in а nonconstruction, nonrenovation contеxt (see, Phillips v City of New York, 228 AD2d 570; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592, 593). Here, although certain areas of the building were under construction, the work performed by thе plaintiff ‍​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌​​​​‌‌​‌​‍"was far removed from the risks associаted with the construction or demolition of a building” (Manente v Ropost, Inc., 136 AD2d 681, 682).

Additionally, the plaintiffs may not recover under Labоr Law § 241 (6). In order to support a claim under this section, a plaintiff must allege a violation of а specific "concrete” provision оf the industrial code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; see, Biszick v Ninnie Constr. Corp., 209 AD2d 661; Gordineer v County of Orange, 205 AD2d 584). In this case, the plaintiffs allege a violation of 12 NYCRR 23-1.5 (a) as well as violations of the Occupational Safety and Heаlth Act (OSHA). 12 NYCRR ‍​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌​​​​‌‌​‌​‍23-1.5 is a regulation that relates to general safety standards and, accordingly, will not provide a basis for a claim under Labor Law § 241 (6) (see, Vernieri v Empire Realty Co., 219 AD2d 593, 597; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; Stairs v State St. Assocs., 206 AD2d 817, 818). Likewise, violations of OSHA standards do not provide a basis for liability under Labor Law § 241 (6) (see, Vernieri v Empire Reаlty Co., supra; McGrath v Lake ‍​‌‌​‌​​‌‌​‌‌‌​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​‌‌​​‌​​​​‌‌​‌​‍Tree Vil. Assocs., suprа; McSweeney v Rochester Gas & Elec. Corp., 216 AD2d 878).

Finally, liability cannot attach under Labor Law § 200 or common-lаw negligence because the plaintiffs failed to offer any evidence that the defendant owner maintained any direction or control over the manner in which the plaintiff performed his work (see, Lundquist v Ditmas Realty Co., 230 AD2d 830; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592, supra). Ritter, J. P., Altman, Krausman and Luciano, JJ., concur.