CAMPOVERDE v. [And Other Actions]. (2007)

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 14, 2006, which, to the extent appealed from as limited by the briefs, (1) granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim insofar as asserted against appellant;  (2) denied appellant's motion for summary judgment dismissing the complaint and cross claims as against it;  (3) granted the cross motion of defendants-respondents Liberty, LLC and Steven Elghanayan for summary judgment dismissing plaintiff's Labor Law § 240(1) and § 246 claims;  and (4) dismissed as moot the third-party complaint and counterclaims, unanimously modified, on the law, plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim denied;  appellant's cross motion granted;  and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendant 114 Liberty Street Condominium dismissing the complaint and cross claims as against it.

The City of New York's Department of Environmental Protection (DEP), not appellant owner, evacuated appellant's lower Manhattan building, solicited bids for decontamination work in the wake of the terrorist attack on September 11, 2001, hired plaintiff's employer ETS Contracting, Inc., an asbestos removal contractor, and was in charge of the environmental cleanup of the building.   No one, other than the DEP's personnel or their contractors' workers, was allowed on the premises.   Therefore, appellant may not be subjected to liability as an owner under Labor Law sections § 240(1) (see Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 51-52, 781 N.Y.S.2d 477, 814 N.E.2d 784 [2004] ) or § 241(6) (see Ahmed v. Momart Discount Store, Ltd., 31 A.D.3d 307, 821 N.Y.S.2d 150 [2006];  Ceballos v. Kaufman, 249 A.D.2d 40, 671 N.Y.S.2d 229 [1998] ).

Appellant is not aggrieved by those portions of the order which granted the cross motion of respondents' Liberty LLC and Steven Elghanayan and dismissed as moot the third-party complaint and counterclaims.