MARTINEZ v. Marion Window Glass and Shade Corporation, et al., Defendants. (2006)

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered March 8, 2005, which, to the extent appealed from as limited by the briefs, granted the motion of defendant County Engineering Co., a Division of Ross Window Corporation (Ross) and the cross motion of Morris Ave. Equities Corp. (Morris) for summary judgment dismissing the complaint as against each movant, unanimously affirmed, without costs.   Appeal from so much of the same order as denied the cross motion of defendant Marion Glass and Window Shade Corporation (Marion) for summary judgment dismissing the complaint as against it, withdrawn in accordance with the stipulation of the parties.

 Plaintiff's Labor Law § 241(6) claim was properly dismissed since the work he was performing at the time of the alleged accident, i.e., repairing a window in an existing apartment, constituted maintenance, not construction, demolition or excavation of a building or structure.   Likewise, the grant of summary judgment dismissing the common-law negligence claim against Morris, the owner of the building in which the alleged hazard was situated, was appropriate since the defect which caused the injury was not a defect about which Morris was on notice (see Juarez v. Wavecrest Mgt. Team, Ltd., 88 N.Y.2d 628, 646, 649 N.Y.S.2d 115, 672 N.E.2d 135 [1996];  Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).

Finally, in the absence of admissible proof sufficient to raise a triable issue as to whether defendant Ross installed the allegedly hazardous window, summary judgment dismissing the complaint against Ross was proper and would not have been properly denied upon plaintiff's speculation that further discovery might reveal that Ross had in fact installed the window (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ).