Haghighi v. Bailer

• Decision Date: 02 June 1997
• Citation: 657 N.Y.S.2d 774,240 A.D.2d 368
• Parties: Houchang HAGHIGHI, et al., Appellants, v. Henry BAILER, Defendant Third-Party Plaintiff-Respondent, Stroehmann Bakeries, Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 774

657 N.Y.S.2d 774

240 A.D.2d 368

Houchang HAGHIGHI, et al., Appellants, v. Henry BAILER, Defendant Third-Party Plaintiff-Respondent, Stroehmann Bakeries, Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

June 2, 1997.

Jaroslawicz & Jaros, New York City (David Jaroslawicz and Robert J. Tolchin, of counsel), for appellants.

Philip J. DeBellis, Melville (Joanne Andreotta, of counsel), for defendant third-party plaintiff-respondent.

Stewart, DeCurtis, Greenblatt, Manning & Baez (E. Richard Rimmels, Jr., Garden City, of counsel), for third-party defendant-respondent.

Before ROSENBLATT, J.P., and THOMPSON, SULLIVAN and FRIEDMANN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated May 17, 1996, as granted the motion of the third-party defendant for summary judgment dismissing the complaint.

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

We agree with the Supreme Court that the activity in which the injured plaintiff was engaged at the time he fell, whether consisting of changing light bulbs or tightening and taping a loose wire nut, constituted mere routine maintenance in a nonconstruction, nonrenovation context and thus failed to support a claim pursuant to Labor Law § 240 (see, Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938, 641 N.Y.S.2d 221, 663 N.E.2d 1251; Smith v. Shell Oil Co., 85 N.Y.2d 1000, 630 N.Y.S.2d 962, 654 N.E.2d 1210; Greenwood v. Shearson, Lehman & Hutton, 238 A.D.2d 311, 656 N.Y.S.2d 295; Bermel v. Board of Educ. of City of New York, 231 A.D.2d 663, 647 N.Y.S.2d 548; Howe v. 1660 Grand Is. Blvd., 209 A.D.2d 934, 619 N.Y.S.2d 227; Cosentino v. Long Is. R.R., 201 A.D.2d 528, 607 N.Y.S.2d 720). Furthermore, the injured plaintiff neither established the requisite employment relationship with the defendant to support his claim (see, Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 419 N.Y.S.2d 959, 393 N.E.2d 1032; Meehan v. Mobil Oil Corp., 184 A.D.2d 1021, 584 N.Y.S.2d 680), nor demonstrated the existence of any defect that proximately caused his injury (see, Katisfarakis v. Central School Dist. No. 1 of N. Shore School Dist., 201 A.D.2d 622, 609 N.Y.S.2d 833; Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402, 564 N.Y.S.2d 326).

The dismissal of the claim pursuant to Labor Law § 241(6) was also proper because the accident did not arise in a construction context (see, Jock v. Fien, 80 N.Y.2d 965, 590 N.Y.S.2d 878, 605 N.E.2d 365; Phillips v. City of New York, 228 A.D.2d 570, 644 N.Y.S.2d 764; Kesselbach v. Liberty Haulage, 182 A.D.2d 741, 582 N.Y.S.2d 739; Malczewski v. Cannon Design, 125 A.D.2d 941, 510 N.Y.S.2d 339) and because the injured plaintiff failed to come forward with evidence of a violation of any specific implementing regulation that proximately caused his injury (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82; Ares v. State of New York, 80 N.Y.2d 959, 590 N.Y.S.2d 874, 605 N.E.2d 361; Carrion v. Lewmara Realty Corp., 222 A.D.2d 205, 635 N.Y.S.2d 4; Mantovi v. Nico Constr. Co., 217 A.D.2d 650, 629 N.Y.S.2d 486).

Finally, the plaintiffs' claim pursuant to common-law negligence and Labor Law § 200 must fail since they have presented no evidence that the defendant had actual or...