Bautista v. 165 W. End Ave. Assocs., L.P.

• Decision Date: 31 March 2016
• Citation: 27 N.Y.S.3d 384 (Mem),137 A.D.3d 714
• Parties: Pedro BAUTISTA, Plaintiff–Appellant, v. 165 WEST END AVENUE ASSOCIATES, L.P., Defendant, The 165 West End Avenue Condominium, et al., Defendants–Respondents. The 165 West End Avenue Condominium, et al., Third–Party Plaintiffs–Respondents, v. Lyn Blacksberg, Third–Party Defendant–Respondent. [And Another Third–Party Action].
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 714

27 N.Y.S.3d 384 (Mem)

Pedro BAUTISTA, Plaintiff–Appellant,

v.165 WEST END AVENUE ASSOCIATES, L.P., Defendant,The 165 West End Avenue Condominium, et al., Defendants–Respondents.

The 165 West End Avenue Condominium, et al., Third–Party Plaintiffs–Respondents,

v.Lyn Blacksberg, Third–Party Defendant–Respondent.

[And Another Third–Party Action].

Supreme Court, Appellate Division, First Department, New York.

March 31, 2016.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.

Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for the 135 West End Avenue Condominium and 165 West End Avenue Owners Corp., respondents.

Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for Lyn Blacksberg, respondent.

Judgment, Supreme Court, New York County (Debra A. James, J.), entered February 28, 2014, insofar as appealed from as limited by the briefs, dismissing the Labor Law § 241(6)

claim as against defendant 165 West End Avenue Owners Corp. (Owners), unanimously affirmed, without costs.

Plaintiff allegedly was injured when a screw that he was removing in the course of replacing window balances in a cooperative apartment unit "jumped" and struck him in the eye. Plaintiff is correct that his work replacing window balances constitutes "maintenance" pursuant to Industrial Code (12 NYCRR) § 23–1.4(b)(13)

. However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241(6) claim was correctly dismissed (see Esposito v New York City Indus. Dev. Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ; Martinez v. Morris Ave. Equities, 30 A.D.3d 264, 817 N.Y.S.2d 47 [1st Dept.2006] ).

TOM

, J.P., SWEENY, MANZANET–DANIELS, GISCHE, GESMER, JJ., concur.