VASEY v. PYRAMID COMPANY OF BUFFALO (1999)

 Supreme Court properly granted plaintiffs' motion for partial summary judgment on liability on the Labor Law § 240(1) claim.   John N. Vasey (plaintiff) was injured when he fell while dusting and cleaning the mini-ledges and bulkheads at a height of approximately 35 to 40 feet in the Walden Galleria in Buffalo.   Plaintiff was operating a manlift known as a “knuckleboom” when he accidentally maneuvered the lift onto a decorative tree grate, causing the lift to tip over and plaintiff to crash to the floor of the mall.   The dusting and cleaning of the mini-ledges and bulkheads throughout the mall was a comprehensive large-scale cleaning project that took several weeks to complete.   Because plaintiff was injured when he fell from a height while engaged in an activity enumerated in Labor Law § 240(1), i.e., “cleaning * * * a building”, liability was properly imposed on defendant under Labor Law § 240(1) (see, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284;  see also, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133;  cf., Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237;  Connors v. Boorstein, 4 N.Y.2d 172, 175, 173 N.Y.S.2d 288, 149 N.E.2d 721).

 The court erred, however, in failing to grant that part of defendant's cross motion that sought dismissal of the Labor Law § 241(6) claim.   Plaintiff's dusting and cleaning of the mini-ledges and bulkheads did not constitute construction, excavation or demolition work within the purview of that section (see, Haghighi v. Bailer, 240 A.D.2d 368, 657 N.Y.S.2d 774;  Cook v. Parish Land Co., 239 A.D.2d 956, 659 N.Y.S.2d 601;  Phillips v. City of New York, 228 A.D.2d 570, 644 N.Y.S.2d 764).

 We reject the contention of plaintiffs on their cross appeal that the court erred in granting that part of defendant's cross motion that sought dismissal of the Labor Law § 200 claim.   The dangerous condition resulted from plaintiff's method of performing the work, and defendant did not supervise or control plaintiff's work (see, Cottone v. Dormitory Auth. of State of N. Y., 225 A.D.2d 1032, 1033, 639 N.Y.S.2d 631;  Mamo v. Rochester Gas & Elec. Corp., 209 A.D.2d 948, 619 N.Y.S.2d 426, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327).  

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: