Opinion
September 29, 2000.
Appeal from Order of Supreme Court, Onondaga County, Elliott, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P. J., PINE, WISNER, KEHOE AND BALIO, JJ.
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 A.D.2d 735, 738; see also, Murray v. City of New York, 43 N.Y.2d 400, 404-406, rearg dismissed 45 N.Y.2d 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 A.D.2d 956; cf., Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813 [involving work on an electric sign affixed flat against a building wall]; Neville v. Deters, 175 A.D.2d 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. of Buffalo, 258 A.D.2d 906, 907; Cook v. Parish Land Co., supra; Walton v. Devi Corp., 215 A.D.2d 60, lv denied 87 N.Y.2d 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 A.D.2d 644, 645, lv denied 93 N.Y.2d 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 v. McDonald's Corp., 220 A.D.2d 638, lv denied 88 N.Y.2d 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 A.D.2d 978).