KIRK v. (And Third-Party and Fourth-Party Actions.). (2006)

Appeal from an order of the Supreme Court (Mulvey, J.), entered June 29, 2005 in Tompkins County, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff, an employee of third-party defendant Hohl Industrial Services, Inc., was injured in July 1999 when he fell from a ladder while working at a facility owned by defendant.   As a result, plaintiff commenced this action against defendant, alleging violations of Labor Law §§ 200, 240(1) and § 241(6).   Following joinder of issue and the commencement of various third-party and fourth-party actions, defendant moved for, among other things, summary judgment dismissing the complaint.   Plaintiff cross-moved for partial summary judgment on his Labor Law § 240(1) cause of action.   Upon its finding that the work performed by plaintiff at the time of his injury was routine maintenance, rather than a repair, Supreme Court granted defendant's motion and dismissed the complaint, prompting this appeal by plaintiff.¹

 Labor Law § 240(1) may serve as a basis for recovery for certain workers injured during the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (see Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003] ).   Accordingly, in determining whether a plaintiff is entitled to the statute's protections, the critical inquiry is “ ‘what type of work the plaintiff was performing at the time of injury’ ” (Panek v. County of Albany, 99 N.Y.2d 452, 457, 758 N.Y.S.2d 267, 788 N.E.2d 616 [2003], quoting Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998] ).   To that end, it has been repeatedly held that routine maintenance is not a protected activity within the meaning of Labor Law § 240(1) (see Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53, 781 N.Y.S.2d 477, 814 N.E.2d 784 [2004];  Esposito v. New York City Indus. Dev. Agency, supra at 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080;  Barbarito v. County of Tompkins, 22 A.D.3d 937, 938-939, 803 N.Y.S.2d 208 [2005], lv. denied 7 N.Y.3d 701, 818 N.Y.S.2d 191, 850 N.E.2d 1166 [2006];  Detraglia v. Blue Circle Cement Co., 7 A.D.3d 872, 873-874, 776 N.Y.S.2d 342 [2004] ).

 In the instant case, it is uncontroverted that the work performed by plaintiff occurred during a routine “shut down” period, at which time defendant disabled some or all of its production machinery so that different parts thereof could be worked on.   In his deposition testimony, Hohl's project manager characterized the job as “changing some guides and some cam rollers and things that [defendant] would normally do but ․ couldn't get at ․ during the course of work.”   He also noted that the shut downs occurred on a quarterly or biannual basis and that the machinery had been fully operational prior to the July 1999 shutdown.   A consistent characterization of the work was provided by defendant's senior mechanical project engineer, and a supervisor for Hohl testified that his understanding of the work being performed was “[b]asically an inspection.   Look for worn out parts and replace what needed to be done.”

In our view, plaintiff's own description of the work as a “repair”-as well as his reliance on invoices which labeled the job similarly-failed to create a triable issue of fact concerning the nature of the work performed.   In the absence of proof that the “machine or object being worked upon was inoperable or not functioning properly” (Goad v. Southern Elec. Intl., 263 A.D.2d 654, 655, 693 N.Y.S.2d 301 [1999] ), Supreme Court properly concluded that the work performed by plaintiff was in the nature of routine maintenance (see Barbarito v. County of Tompkins, supra at 938-939, 803 N.Y.S.2d 208;   Detraglia v. Blue Circle Cement Co., supra at 873, 776 N.Y.S.2d 342;   Robertson v. Little Rapids Corp., 277 A.D.2d 560, 561-562, 715 N.Y.S.2d 482 [2000], abrogated on other grounds Goad v. Southern Elec. Intl., 304 A.D.2d 887, 758 N.Y.S.2d 184 [2003] ).   Moreover, even if, as plaintiff contends, there was construction and repair work taking place elsewhere on the job site at the time of plaintiff's injury, there is no indication that plaintiff's work was integrated therewith and, thus, he may not rely upon work conducted by others in order to bring him within the statute's protections (see Martinez v. City of New York, 93 N.Y.2d 322, 326, 690 N.Y.S.2d 524, 712 N.E.2d 689 [1999];  compare Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 881, 768 N.Y.S.2d 178, 800 N.E.2d 351 [2003] ).

Finally, inasmuch as Supreme Court correctly concluded that plaintiff was injured while performing routine maintenance, his Labor Law § 241(6) cause of action was also properly dismissed (see Labor Law § 241;  Esposito v. New York City Indus. Dev. Agency, supra at 528, 770 N.Y.S.2d 682, 802 N.E.2d 1080;  Barbarito v. County of Tompkins, supra at 939, 803 N.Y.S.2d 208;  Goad v. Southern Elec. Intl., supra ).

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Supreme Court dismissed plaintiff's Labor Law § 200 cause of action on other grounds.   Inasmuch as plaintiff has not addressed that cause of action in his brief, we deem that issue abandoned (see Olson v. Pyramid Crossgates Co., 291 A.D.2d 706, 708, 738 N.Y.S.2d 430 [2002] ).

CARDONA, P.J.

MERCURE, SPAIN, CARPINELLO and MUGGLIN, JJ., concur.