In Edwards v. Twenty-Four Twenty Six Main Street Associates, 195 A.D.2d 592, 601 N.Y.S.2d 11 (2d Dep't 1993), plaintiff fell from a height while repairing dilapidated plywood shelves.Summary of this case from Joblon v. Solow
195 A.D.2d 592 601 N.Y.S.2d 11 William EDWARDS, Appellant, v. TWENTY-FOUR TWENTY-SIX MAIN STREET ASSOCIATES, Defendant Third-Party Plaintiff-Respondent, Robert A. Levine d/b/a Robsam Investors, et al., Defendants; Hayims&sCompany, Third-Party Defendant-Respondent. Supreme Court of New York, Second Department July 26, 1993.
Davidsons&sCohen, P.C., Rockville Centre (Bruce E. Cohen, of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelmans&sDicker, New York City (Mark K. Anesh, Dennis Justin Kelly, and Edward A. Magro, of counsel), for defendant third-party plaintiff-respondent.
Dwyers&s Duffy, P.C., New York City (Joseph J. Gulino, of counsel), for third-party defendant-respondent.
Before BRACKEN, J.P., and BALLETTA, LAWRENCE and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), entered June 17, 1991, which granted the motion of the defendant Twenty-Four Twenty-Six Main Street Associates for summary judgment dismissing the complaint insofar as it is asserted against it and denied his cross motion for summary judgment.
ORDERED that the order is affirmed, with one bill of costs.
The plaintiff was an employee of the third-party defendant Hayims&sCompany (hereinafter Hayim), a carpet warehouse located on premises owned by the defendant Twenty-Four Twenty-Six Main Street Associates. Hayim stored the carpets on shelves comprised of metal frames with plywood shelves, which were between 10 to 12 feet high. It was the plaintiff's duty to load and unload carpets from these shelves, and he was raised to the upper shelves by means of a "hi-lo" vehicle. The plaintiff also performed repair work on the plywood shelves, setting them back on the metal frames when they were askew, and he replaced the plywood shelves when they became dilapidated. On September 6, 1988, while searching for a carpet, the plaintiff noticed that the plywood shelves in a certain area of the structure needed to be replaced. As he was replacing a plywood shelf, he slipped and fell about six feet to the ground sustaining injuries.
The plaintiff received Workers' Compensation benefits as a result of his injuries, and then commenced this action against the defendant owner of the premises, based upon its failure to provide a safe workplace as required by the Labor Law. The Supreme Court subsequently granted the defendant owner's motion for summary judgment dismissing the complaint insofar as asserted against it. We affirm.
It is clear that liability under Labor Law § 240(1) was not meant to apply to routine maintenance in a non-construction, non-renovation context (see, Manente v. Ropost, Inc., 136 A.D.2d 681, 524 N.Y.S.2d 96). Moreover, liability cannot attach under Labor Law § 200, as the plaintiff has not shown sufficiently that any facts exist which would show that the defendant owner maintained any direction or control over the manner in which the plaintiff performed his duties (see, Whitaker v. Norman, 75 N.Y.2d 779, 552 N.Y.S.2d 86, 551 N.E.2d 579; Karaktin v. Gordon Hillside Corp., 143 A.D.2d 637, 532 N.Y.S.2d 891).
In view of the foregoing, we need not reach the plaintiff's remaining contention.