DUQUE v. LLC (2022)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about December 1, 2021, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of Labor Law § 240(1) and granted defendant's motion for summary judgment dismissing that claim, unanimously affirmed, without costs.

Plaintiff was employed by a cleaning company, hired by defendant owner to perform cleaning of newly constructed apartments before they were turned over to tenants.  Plaintiff played no role in the construction.  On the day of the accident, she was cleaning a refrigerator that had been left on its delivery dolly when it fell upon her, causing her injury.  In applying the factors set forth in (Soto v. J. Crew Inc., 21 N.Y.3d 562, 568–569, 976 N.Y.S.2d 421, 998 N.E.2d 1045 [2013]), the motion court properly concluded that plaintiff was not engaging in “cleaning” within the meaning of Labor Law § 240(1) at the time of her accident (see also Morales v. Avalon Bay Communities, Inc., 140 A.D.3d 533, 34 N.Y.S.3d 29 [1st Dept. 2016], lv denied 28 N.Y.3d 907, 2016 WL 6433425 [2016]).