From Casetext: Smarter Legal Research

Joy v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Apr 28, 2005
17 A.D.3d 300 (N.Y. App. Div. 2005)

Opinion

5486.

April 28, 2005.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered June 14, 2004, which denied defendant's motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) claim and sua sponte ordered that the City produce a nonparty witness, unanimously reversed, on the law, without costs, the section 241 (6) claim dismissed and the discovery order vacated. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Armienti, DeBellis Whiten, LLP, New York (Judah Z. Cohen of counsel), for appellant.

Law Offices of Lawrence P. Biondi, New York (Lawrence P. Biondi of counsel), for respondents.

Concur — Mazzarelli, J.P., Sullivan, Williams, Gonzalez, Catterson, JJ.


The fatal injury to plaintiff's deceased, a subway signal maintenance employee, did not fall within the ambit of Labor Law § 241 (6), since it did not occur in the course of "construction, excavation or demolition work." The record clearly shows that the task the decedent was performing at the time of his injury — testing and inspecting a signal — was in the nature of routine maintenance undertaken over two months after the construction project. Repair of the signal by installation of a track circuit wire was completed by a separate division of the Transit Authority ( see Beehner v. Eckerd Corp., 3 NY3d 751; Martinez v. City of New York, 93 NY2d 322). As a consequence, Supreme Court's discovery order, which sought the production of evidence on the issue of whether the decedent was engaged in construction work at the time of his death, is rendered academic.


Summaries of

Joy v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Apr 28, 2005
17 A.D.3d 300 (N.Y. App. Div. 2005)
Case details for

Joy v. City of New York

Case Details

Full title:JESEENTHA JOY, as Administratrix of the Estate of JOY ANTONY, Deceased, et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 28, 2005

Citations

17 A.D.3d 300 (N.Y. App. Div. 2005)
794 N.Y.S.2d 40

Citing Cases

Striplin v. AC&E Home Inspection Corp.

Where a defendant moves to dismiss an action pursuant to CPLR 3211 (a) (1), asserting the existence of a…

Pol v. City of N.Y.

Dismissal of that part of the Labor Law § 241(6) claim predicated upon 12 NYCRR 23-3.3(c) was proper because…