Howe v. 1660 Grand Island Blvd., Inc.
| Decision Date | 16 November 1994 |
| Parties | Joseph HOWE, Respondent, v. 1660 GRAND ISLAND BOULEVARD, INC., Appellant and Third-Party Plaintiff-Respondent. Niagara Falls Sightseeing by Sheridan, Third-Party Defendant-Appellant, et al., Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
Quinn & McGarry, P.C. by Thomas Devoy, Buffalo, for third-party defendant appellant-respondent.
Bouvier, O'Connor by Chris Trapp, Buffalo, for third-party plaintiff-respondent-appellant.
Walsh, Roberts & Grace by Thomas Roberts, Buffalo, for respondent--Joseph Howe.
Before DENMAN, P.J., and GREEN, BALIO, DOERR and BOEHM, JJ.
Plaintiff, a maintenance worker, sustained injuries when a ladder he was climbing slid, causing him to fall to the ground. Plaintiff was climbing to the roof of a commercial building to place a piece of tape over an electric eye mounted on the roof. Plaintiff's purpose was to disable the electric eye so that the outdoor flood lights it controlled would remain on during the day.
Supreme Court erred in granting plaintiff partial summary judgment on his Labor Law § 240(1) cause of action and in denying defendant's cross motion for summary judgment dismissing that cause of action. Plaintiff was not engaged in the "repairing" or "altering" of a "building or structure" (Labor Law § 240[1] but was merely performing routine maintenance in a non-construction, non-renovation context (see, Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592, 593, 601 N.Y.S.2d 11; Manente v. Ropost, Inc., 136 A.D.2d 681, 682, 524 N.Y.S.2d 96; cf. Brice v. Lafayette Country Club, 177 A.D.2d 957, 578 N.Y.S.2d 311).
Order unanimously reversed on the law without costs, motion denied and cross motion granted.
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