NAGEL v. REALTY CORP (2001)

Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about September 8, 2000, which, in an action for personal injuries under Labor § 241(6) by a laborer against a building owner, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We reject plaintiff's argument that the two-year safety test he was performing on the elevator in defendant's building when he was injured, is covered by Labor Law § 241(6).   Indeed, he acknowledges it was in the nature of routine preventive maintenance.   Although the definition of what constitutes “construction work” under section 241(6) includes “maintenance” (12 NYCRR 23-1.4[b][13];  see, Joblon v. Solow, 91 N.Y.2d 457, 466, 672 N.Y.S.2d 286, 695 N.E.2d 237), we have held that it is only such maintenance as involves “significant structural work” (Molloy v. 750 7th Ave. Assocs., 256 A.D.2d 61, 681 N.Y.S.2d 253, distinguishing Joblon v Solow, supra;  cf., Jock v. Fien, 80 N.Y.2d 965, 967, 590 N.Y.S.2d 878, 605 N.E.2d 365).   Since plaintiff performed no work that significantly affected the structure of defendant's building or elevator, the action was properly dismissed.