Esposito v. New York City Industrial Development Agency

• Decision Date: 20 November 2003
• Citation: 1 N.Y.3d 526,770 N.Y.S.2d 682,802 N.E.2d 1080
• Parties: RICHARD ESPOSITO, Appellant, v. NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 526

802 N.E.2d 1080

770 N.Y.S.2d 682

RICHARD ESPOSITO, Appellant, v. NEW YORK CITY INDUSTRIAL DEVELOPMENT AGENCY et al., Respondents.

Court of Appeals of the State of New York.

Decided November 20, 2003.

Rheingold, Valet, Rheingold, Shkolnik & McCartney LLP, New York City (Hunter J. Shkolnik of counsel), for appellant.

Fiedelman & McGaw, Jericho (Ross P. Masler of counsel), and Jacobowitz, Garfinkel & Lesman, for New York City Industrial Development Agency, respondent.

Shaub, Ahmuty, Citrin & Spratt, LLP, New York City (Timothy R. Capowski of counsel), and Ahmuty, Demers & McManus, for American International Group, Inc. and another, respondents.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff was injured after falling from a ladder while attempting to remove a cover from an air conditioning unit on the 22nd floor of a commercial building in Manhattan. He was a member of Local 94 Operating Engineers Union, which did maintenance work for the building. American International Realty (AIR), a subsidiary of American International Group (AIG), leased the building from its owner, the New York City Industrial Development Agency (NYCIDA). Plaintiff sued AIR, AIG, NYCIDA and the New York City Environmental Development Corporation for violations of Labor Law § 240 (1) and § 241 (6). On the date of the accident, plaintiff was performing a monthly maintenance check of the air conditioning units on the 22nd through 29th floors. This included taking amperage readings and checking belts, sheaves and bearings. When checking the 22nd floor unit, plaintiff discovered a low amperage reading and heavy vibrations. The motor appeared worn and loose, and the belts were "chewed up." He left and returned with tools and parts needed to fix the machine. As he climbed a ladder and began to remove the unit's cover a second time, the bottom of the ladder "kicked out" and he fell.

Supreme Court held that plaintiff could not sustain a claim under section 240 (1), because he was not engaged in any of the covered activities. The Appellate Division affirmed, as do we. Section 240 (1) applies where an employee is engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." Although repairing is among the enumerated activities, we have distinguished this from "routine maintenance" (Smith v Shell Oil Co., 85 NY2d 1000, 1002 [1995]). The work here involved replacing components that require...