PELUSO v. 69 TIEMANN OWNERS CORP (2003)

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered February 15, 2002, which, inter alia, granted defendant's motion for summary judgment dismissing plaintiff's second and third causes of action, unanimously modified, on the law, to deny the motion dismissing the third cause of action alleging a violation of Labor Law § 200 and to reinstate that cause, and otherwise affirmed, without costs.

 The record establishes that a triable issue exists as to whether defendant had actual or constructive notice of unsafe conditions alleged to have caused plaintiff's fall (see Higgins v. 1790 Broadway Assocs., 261 A.D.2d 223, 225, 691 N.Y.S.2d 31).   In deposition testimony, principals of defendant corporation, as well as the superintendent of the building, acknowledged that the concrete floor in the elevator room where plaintiff was working when he tripped had at least two levels that were painted the same color, that the control panel for the elevator was mounted on a raised area, and that the panel could not be reached without stepping up onto the raised area.   In addition, plaintiff testified that the elevator room was dimly lit.

 The court, however, properly dismissed plaintiff's second cause of action alleging a violation of Labor Law § 241(6).   Liability under this statute is limited to accidents where the work being performed involves construction, excavation or demolition work (DiBenedetto v. Port Authority, 293 A.D.2d 399, 742 N.Y.S.2d 207 [fall from crane fender];  Quinlan v. City of New York, 293 A.D.2d 262, 739 N.Y.S.2d 706 [patching hole in wall neither debris disposal nor demolition] ).   The Industrial Code further defines what constitutes “construction, excavation or demolition” work in the context of the statute's stated scope (Joblon v. Solow, 91 N.Y.2d 457, 466, 672 N.Y.S.2d 286, 695 N.E.2d 237).   If the allegations or evidence demonstrate that the plaintiff was “not performing any of the tasks enumerated in Part 23 of the Industrial Code” dismissal is clearly warranted (Croce v. City of New York, 297 A.D.2d 257, 746 N.Y.S.2d 484 [fall from ladder while attaching bulletin board in subway station] ).   Routine maintenance activity is not within the ambit of Section 241(6) (Jani v. City of New York, 284 A.D.2d 304, 725 N.Y.S.2d 388 [mere replacement of worn out component not a “repair” constituting “construction work”] ).   Construction work is further defined by regulation as “(a)ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure” (12 NYCRR 23-1.4[b][13] ).   Examination of an electrical control panel in conjunction with adjusting an elevator that is not stopping level with the floor is not construction work for purposes of § 241(6) (cf.  Jani v. City of New York, supra;  Molloy v. 750 7th Ave. Assocs., 256 A.D.2d 61, 62, 681 N.Y.S.2d 253;  accord, Spiteri v. Chatwal Hotels, 247 A.D.2d 297, 299, 669 N.Y.S.2d 282).   Here, plaintiff was examining the electrical control panel in the basement in an attempt to repair an elevator that was not stopping level with the floor, but was otherwise functioning.   The repair work was being performed on the elevator, not on a building or other structure as required by both statute and regulation (Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 448 N.Y.S.2d 132, 433 N.E.2d 115;  DaBolt v. Bethlehem Steel Corporation, 92 A.D.2d 70, 73-74, 459 N.Y.S.2d 503).   This activity did not constitute significant work on the building within the meaning of Section 241 (Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581, 782 N.E.2d 558;  Spiteri v. Chatwal Hotels, supra;  Sajta v. Latham Four, 282 A.D.2d 969, 970, 723 N.Y.S.2d 716;  Scott v. Scott's Landing, 277 A.D.2d 918, 715 N.Y.S.2d 135).