COOMBS v. Twins Electric Corp., Defendant. (2008)

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered February 5, 2007, which, insofar as appealed from, upon reargument, vacated so much of its prior order granting defendant-appellant's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) and § 241(6) causes of action and denying plaintiff's cross motion for summary judgment on the causes of action as against appellant, and granted plaintiff's cross motion, unanimously reversed, on the law, without costs, plaintiff's cross motion denied and defendant-appellant's motion for summary judgment dismissing the Labor Law § 240(1) and § 241(6) causes of action granted.

Plaintiff, a superintendent of a building that was undergoing demolition and construction, is not within the class of persons entitled to invoke the protection of Labor Law § 240(1) and § 241(6). Although an individual need not actually be engaged in physical labor to be entitled to coverage under the Labor Law, plaintiff did not perform work integral or necessary to the completion of the construction project, nor was he “a member of a team that undertook an enumerated activity under a construction contract” (Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ).   As superintendent of the building, plaintiff was responsible for maintaining the building, keeping it clean, supervising the building staff, and watching for unsafe conditions.   Although the demolition and construction work made his job more difficult insofar as it affected the portion of the building that was not under construction, plaintiff was not responsible for inspecting the areas of the building under construction.   Nor was he responsible for performing any work related to the construction, and his job duties did not change after the project commenced (Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d 321, 322-323, 798 N.Y.S.2d 38 [2005], lv. denied 6 N.Y.3d 770, 811 N.Y.S.2d 333, 844 N.E.2d 787 [2006];  Blandon v. Advance Contr. Co., 264 A.D.2d 550, 551-552, 695 N.Y.S.2d 36 [1999], lv. denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [1999] ).