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Kinsler v. Lu-Four Associates

Appellate Division of the Supreme Court of New York, Second Department
May 22, 1995
215 A.D.2d 631 (N.Y. App. Div. 1995)

Opinion

May 22, 1995

Appeal from the Supreme Court, Suffolk County (Gowan, J.).


Ordered that the order and judgment is reversed, on the law, and the motions are denied; and it is further,

Ordered that upon searching the record, the plaintiffs are granted partial summary judgment on the issue of liability on their cause of action under Labor Law § 240 (1) against the defendant Lavastone Whirlpool Bath Systems, Inc.; and it is further,

Ordered that the appellants are awarded one bill of costs payable by the respondents appearing separately and filing separate briefs.

The Supreme Court erred in dismissing the plaintiffs' causes of action under Labor Law § 240 (1) as the evidence indicated that the plaintiff was working on an oil burner or suspended warm air furnace, which was suspended from the ceiling of a building by rods. Under these facts, the oil burner is deemed part of the building for the purposes of Labor Law § 240 (1) (see, Izrailev v Ficarra Furniture, 70 N.Y.2d 813; Buckley v Radovich, 211 A.D.2d 652). Moreover, the burner by itself is a "structure" under Labor Law § 240 (1) (see, Lewis-Moors v Contel of N.Y., 78 N.Y.2d 942; Kahn v Gates Constr. Corp., 103 A.D.2d 438). The plaintiff was engaged in "repair" work at the time of the accident, which is one of the activities specifically protected under Labor Law § 240 (1) (see, Izrailev v Ficarra Furniture, supra).

Because the plaintiffs presented evidence that the accident was caused when an unsecured ladder slipped, they established a prima facie case under Labor Law § 240 (1) (see, Lopez v 36-2nd J Corp., 211 A.D.2d 667; Bryan v City of New York, 206 A.D.2d 448). The defendants failed to raise a triable issue of fact as to this question. Therefore, upon searching the record (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106), partial summary judgment is granted in favor of the plaintiffs on the issue of liability on their cause of action under Labor Law § 240 (1) insofar as it is asserted against the defendant Lavastone Whirlpool Bath Systems, Inc., who, on this record, is the only defendant thus far established to be an "owner" (see, DeMartino v CBS Auto Body Towing, 208 A.D.2d 886).

The Supreme Court also erred in dismissing the Labor Law § 241 (6) cause of action, as the record establishes that the plaintiff was engaged in "construction work" as defined by 12 NYCRR 23-1.4 (b) (13) (see, Chavious v Friends Academy, 213 A.D.2d 509). Furthermore the allegation of a violation of 12 NYCRR 23-1.21 (b) (4) (i) is sufficient on these facts to warrant denial of the defendants' motions for summary judgment as to the Labor Law § 241 (6) cause of action (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494). The other regulations cited by the plaintiff have no application to the facts of this case.

Furthermore, the Labor Law § 200 and common-law negligence causes of action should not have been dismissed as there are questions of fact regarding each defendant's contribution to the conditions which led to the accident (see, Maher v Atlas Tr. Mix Corp., 104 A.D.2d 591; cf., Lombardi v Stout, 80 N.Y.2d 290). Bracken, J.P., Pizzuto, Santucci and Friedmann, JJ., concur.


Summaries of

Kinsler v. Lu-Four Associates

Appellate Division of the Supreme Court of New York, Second Department
May 22, 1995
215 A.D.2d 631 (N.Y. App. Div. 1995)
Case details for

Kinsler v. Lu-Four Associates

Case Details

Full title:BENNETT KINSLER et al., Appellants, v. LU-FOUR ASSOCIATES et al.…

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

Date published: May 22, 1995

Citations

215 A.D.2d 631 (N.Y. App. Div. 1995)
628 N.Y.S.2d 303

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