Summary: Steven Kostyo v. Schmitt and Behling, LLC, 82 A.D.3d 1575, 919 N.Y.S.2d 606 (4th Dept. 2011) (Mar. 25, 2011). The plaintiff, Steven Kostyo, was injured when he fell from the front porch roof of a rental property owned by the defendant and leased by Karen Kostyo (plaintiff’s wife). At the time of his injury, the plaintiff was fixing and winterizing a window over the porch. The trial court had dismissed the §240(1) claim on “routine maintenance” grounds. This court held that there was an issue of fact as to whether the plaintiff was performing a repair (i.e. the object being worked on was inoperable or not functioning properly).
Practice Note: “Delineating between routine maintenance and repair is frequently a close, fact-driven issue.”