Garcia–Rosales v. Bais Rochel Resort

• Decision Date: 14 November 2012
• Citation: 2012 N.Y. Slip Op. 07623,100 A.D.3d 687,954 N.Y.S.2d 148
• Parties: Ernesto GARCIA–ROSALES, appellant, v. BAIS ROCHEL RESORT, et al., respondents.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 687

954 N.Y.S.2d 148

2012 N.Y. Slip Op. 07623

Ernesto GARCIA–ROSALES, appellant,

v.BAIS ROCHEL RESORT, et al., respondents.

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

Nov. 14, 2012.

Lever & Stolzenberg, LLP, White Plains, N.Y. (Terrence James Cortelli of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Glen Feinberg and Richard E. Lerner of counsel), for respondents.

ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Bartlett, J.), dated June 22, 2011, as granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1)and 241(6), and denied his cross motion for summary judgment on the issue of liability on those causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violations of Labor Law § 240(1) by showing that the plaintiff's accident did not occur while he was engaged in an activity enumerated in Labor Law § 240(1), but rather, occurred while he was performing routine maintenance ( see Owens v. City of New York, 72 A.D.3d 775, 898 N.Y.S.2d 493;Thompson v. 1701 Corp., 51 A.D.3d 904, 857 N.Y.S.2d 732;Azad v. 270 5th Realty Corp., 46 A.D.3d 728, 848 N.Y.S.2d 688).

The plaintiff failed to raise a triable issue of fact in opposition to that branch of the defendants' motion. The correction sheet attached to the plaintiff's deposition transcript presented feigned issues of fact tailored to avoid the consequences of his earlier deposition testimony, and was, therefore, insufficient to raise a triable issue of fact ( see Thompson v. Commack Multiplex Cinemas, 83 A.D.3d 929, 921 N.Y.S.2d 304;Smith v. Costco Wholesale Corp., 50 A.D.3d 499, 856 N.Y.S.2d 573;Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465). The correction sheet contained no statement of reasons for making the corrections ( seeCPLR 3116[a]; Shell v. Kone El. Co., 90 A.D.3d 890, 935 N.Y.S.2d 132;Thompson v. Commack Multiplex Cinemas, 83 A.D.3d at 930, 921 N.Y.S.2d 304;Smith v. Costco Wholesale Corp., 50 A.D.3d at 501, 856 N.Y.S.2d 573;Dima v. Morrow St. Assoc., LLC, 31 A.D.3d 697, 818 N.Y.S.2d 474). The plaintiff's affidavit also presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and was likewise insufficient to raise a triable issue of fact ( see Vela v. Tower Ins. Co. of N.Y., 83 A.D.3d 1050, 921 N.Y.S.2d 325;Blochl v. RT Long Is. Franchise, LLC, 70 A.D.3d 993, 895 N.Y.S.2d 511;Goberdhan v. Waldbaum's Supermarket, 295 A.D.2d 564, 745 N.Y.S.2d 46;Bloom v. La Femme Fatale of Smithtown, 273 A.D.2d 187, 709 N.Y.S.2d 431). Therefore, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violations of Labor Law § 240(1), and properly denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability on that cause of action.

The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violations of Labor Law § 241(6). The defendants established, prima facie, that the work being performed by the plaintiff at the time of the accident was not connected to construction, excavation, or demolition work, as defined in the Industrial Code ( see12 NYCRR 23–1.4[b][13], [16], [19] ). Routine maintenance is not within the ambit of Labor Law § 241(6) ( see Peluso v. 69 Tiemann Owners Corp., 301 A.D.2d 360, 755 N.Y.S.2d 17). Therefore, Labor Law § 241(6) is inapplicable ( see Esposito v. New York City Indus. Dev....