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Retamal v. Miriam Osborne Meml. Home Assoc

Appellate Division of the Supreme Court of New York, Second Department
Dec 21, 1998
256 A.D.2d 506 (N.Y. App. Div. 1998)

Opinion

December 21, 1998

Appeal from the Supreme Court, Westchester County (Nastasi, J.).


Ordered that the order is modified by deleting the provisions thereof which granted those branches of the cross motions which were for summary judgment dismissing the cause of action under Labor Law § 240 Lab. (1) and substituting therefor provisions denying those branches; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and so much of the complaint as asserted a cause of action under Labor Law § 240 Lab. (1), and the third-party complaint, are reinstated.

The plaintiff, Sergio A. Retamal, was employed by the third-party defendant Beneath Your Sole, Inc. (hereinafter Beneath Your Sole), as a window washer. The defendant third-party plaintiff Miriam Osborne Memorial Home Association (hereinafter the Association) operates a retirement home consisting of both a residential facility and a skilled nursing facility. The Association owns a single structure, five-story dwelling located at 101 Theall Road, Rye.

On or about October 28, 1994, the plaintiff appeared at the retirement facility to clean its exterior windows pursuant to a maintenance agreement between Beneath Your Sole and the Association. The plaintiff was injured during the course of his employment when he allegedly slipped from an exterior second-story window ledge.

The plaintiff commenced the instant action against the Association asserting liability pursuant to Labor Law §§ 200 Lab., 201 Lab., 202 Lab., 240 Lab., and 241 Lab.. The Association commenced a third-party action against Beneath Your Sole for contribution and indemnification. Upon completion of discovery, all the parties moved for summary judgment. The Supreme Court denied the plaintiff's motion for summary judgment and granted the respective cross motions, inter alia, for summary judgment dismissing the complaint. We now modify.

As the plaintiff correctly concedes, the Labor Law § 202 Lab. cause of action was properly dismissed since the site of the plaintiffs accident is a multiple dwelling consisting of five stories and the statute exempts multiple dwellings of less than six stories from its scope.

We agree, however, with the appellant's contention that Labor Law § 240 Lab. is applicable to claims by professional window washers who are injured as a result of elevation-related risks while cleaning the exterior windows of a multiple-story building ( see, Rivers v. Sauter, 26 N.Y.2d 260; Koenig v. Patrick Constr. Corp., 298 N.Y. 313). We conclude that the limitations in the applicability of Labor Law § 240 Lab. apply only in truly domestic situations and not to the instant situation where an owner of a building contracts for window washing services ( cf., Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938; Connors v. Boorstein, 4 N.Y.2d 172). Labor Law § 202 Lab. does not preempt the plaintiff's cause of action under Labor Law § 240 Lab. ( see, Williamson v. 16 W. 57th St. Co., 256 A.D.2d 507 [decided herewith]). Although the plaintiff may assert a cause of action pursuant to Labor Law § 240 Lab., summary judgment on the issue of liability under that section should not be granted since a question of fact exists as to the manner in which the subject accident occurred ( see, Groves v. Land's End Hous. Co., 80 N.Y.2d 978; Xirakis v. 1115 Fifth Ave. Corp., 226 A.D.2d 452).

The Supreme Court properly dismissed the plaintiff's remaining causes of action. The Labor Law § 200 Lab. and common-law negligence causes of action were properly dismissed since there was no showing that the Association maintained any direction or control over the safety aspects of the workplace or the manner in which the plaintiff performed his tasks ( see, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Charles v. City of New York, 227 A.D.2d 429). Likewise, the Supreme Court properly dismissed the plaintiff's Labor Law § 241 Lab. (6) cause of action as the record establishes that the plaintiff was not involved in the construction or demolition of the building or m any excavation associated therewith ( see, Jock v. Fien, 80 N.Y.2d 965, 968; Phillips v. City of New York, 228 A.D.2d 570, 571).

Santucci, J. P., Joy, Friedmann and McGinity, JJ., concur.


Summaries of

Retamal v. Miriam Osborne Meml. Home Assoc

Appellate Division of the Supreme Court of New York, Second Department
Dec 21, 1998
256 A.D.2d 506 (N.Y. App. Div. 1998)
Case details for

Retamal v. Miriam Osborne Meml. Home Assoc

Case Details

Full title:SERGIO A. RETAMAL, Appellant, v. MIRIAM OSBORNE MEMORIAL HOME ASSOCIATION…

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

Date published: Dec 21, 1998

Citations

256 A.D.2d 506 (N.Y. App. Div. 1998)
682 N.Y.S.2d 409

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