Jones v. Bartlett

Sep 29, 2000
Versions:275 A.D.2d 956
713 N.Y.S.2d 407
2000 N.Y. App. Div. LEXIS 9771

—Order unanimously affirmed without costs. Memorandum: We agree with plaintiff that defendants should have moved to amend their answer to assert the defense based on Workers’ Compensation Law § 29 (6) before including that defense as one of the bases for their motion for summary judgment dismissing the amended complaint (see, Cole v Rappazzo Elec. Co., 267 AD2d 735, 738; see also, Murray v City of New York, 43 NY2d 400, 404-406, rearg dismissed 45 NY2d 966). We conclude, however, that Supreme Court nevertheless properly granted defendants’ motion and denied plaintiff’s cross motion for summary judgment on liability on the Labor Law § 240 (1) and § 241 (6) causes of action. Plaintiff’s decedent was hanging a banner from a sign frame when he fell from his ladder and thus he was not engaged in work protected by Labor Law § 240 (1) (see, Cook v Parish Land Co., 239 AD2d 956; cf., Izrailev v Ficarra Furniture, 70 NY2d 813 [involving work on an electric sign affixed flat against a building wall]; Neville v Deters, 175 AD2d 597 [involving replacement of permanent sign affixed to a building]). Nor was the work of plaintiff’s decedent protected by Labor Law § 241 (6) because the injuries of plaintiff’s decedent did not result from an accident in which construction, demolition or excavation work was being performed (see, Vasey v Pyramid Co., 258 AD2d 906, 907; Cook v Parish Land Co., supra; Walton v Devi Corp., 215 AD2d 60, lv denied 87 NY2d 809). The court properly granted summary judgment dismissing the common-law negligence cause of action because defendants established that they were out-of-possession landlords who did not retain control of the premises and were not contractually obligated to maintain or repair the premises (see, Baker v Getty Oil Co., 242 AD2d 644, 645, lv denied 93 NY2d 801). Contrary to plaintiff’s contention, the retention by defendant Bart-Rich Properties, a lessor, of the right to inspect the premises is insufficient to raise a question of fact on this issue (see, Dalzell *957v McDonald’s Corp., 220 AD2d 638, lv denied 88 NY2d 815). In addition, plaintiff failed to raise an issue of fact whether defendants created a dangerous condition or failed to remedy it after receiving actual or constructive notice of it (see, Winecki v West Seneca Post 8113, 227 AD2d 978). (Appeal from Order of Supreme Court, Onondaga County, Elliott, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Wisner, Kehoe and Balio, JJ.