VANERSTROM v. STRASSER (1997)

In an action to recover damages for wrongful death and conscious pain and suffering, the plaintiff appeals from an order of the Supreme Court, Queens County (Posner, J.), entered May 22, 1996, which granted the defendant's motion for summary judgment dismissing the complaint, and denied the plaintiff's cross motion to dismiss the answer and for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff's decedent, a nursing home maintenance employee, was preparing the nursing home's elevator shafts for a routine visit from an exterminating contractor.   While standing inside Elevator C, the plaintiff's decedent leaned out a trap door into the shaftway of Elevator D to poke open the doorway of Elevator D with a broomstick, in order to freeze Elevator D. He did this to save himself the trouble of going to the motor room to shut down Elevator D's electricity at the source.   As he was so engaged, and before he could get the D shaftway door open, Elevator D descended and struck the plaintiff's decedent, killing him.   The plaintiff sued the owner of the building, who was also the executive director of the nursing home that had employed the decedent, alleging violations of Labor Law § 200 and § 240.   The court granted the defendant's motion to dismiss the complaint.   We affirm.

 As the Supreme Court correctly ruled, routine maintenance activities, not related to construction or renovation, are not intended to be protected by Labor Law § 240 (see, e.g., Smith v. Shell Oil Co., 85 N.Y.2d 1000, 630 N.Y.S.2d 962, 654 N.E.2d 1210;  see also, Aviles v. Crystal Management, Inc., 233 A.D.2d 129, 650 N.Y.S.2d 638;  Cosentino v. Long Is. R.R., 201 A.D.2d 528, 607 N.Y.S.2d 720;  Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592, 601 N.Y.S.2d 11;  Manente v. Ropost, Inc., 136 A.D.2d 681, 524 N.Y.S.2d 96).   In addition, the plaintiff's decedent did not fall from a height, and was not struck by an object falling from an elevated worksite, so that the event that caused his injury was not within the contemplation of Labor Law § 240 (see, e.g., White v. Dorose Holding, 216 A.D.2d 290, 627 N.Y.S.2d 457;  Lanzilotta v. Lizby Assocs., 216 A.D.2d 229, 629 N.Y.S.2d 18).

 Furthermore, a premises owner is not liable under the common law or Labor Law § 200 where there is no dangerous condition on the premises, and where the injuries sued upon were caused by the manner in which the work was undertaken-a manner which was not controlled or supervised by the premises owner (see, e.g., Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117;  Bermel v. Board of Educ., 231 A.D.2d 663, 647 N.Y.S.2d 548 ).   Indeed, the plaintiff's decedent's own behavior was the sole proximate cause of his accident (see, e.g., Button v. Rainbow Prods. & Servs., 234 A.D.2d 664, 650 N.Y.S.2d 869;  Styer v. Walter Vita Constr., 174 A.D.2d 662, 571 N.Y.S.2d 524;  Mack v. Altmans Stage Light. Co., Inc., 98 A.D.2d 468, 470 N.Y.S.2d 664).

 In any event, we note that the plaintiff's action was barred by the Workers' Compensation Law, as the plaintiff's decedent was injured in the course of his employment, and the defendant premises-owner was his co-employee (see, e.g., Heritage v. Van Patten, 59 N.Y.2d 1017, 466 N.Y.S.2d 958, 453 N.E.2d 1247;  Blach v. Glabman, 234 A.D.2d 328, 650 N.Y.S.2d 796;  Stephan v. Stein, 226 A.D.2d 364, 640 N.Y.S.2d 245;  Mesa v. Violante, 204 A.D.2d 610, 614 N.Y.S.2d 224;  Amelco v. Berk, 199 A.D.2d 448, 605 N.Y.S.2d 404;  see also, Workers' Compensation Law § 29[6] ).

MEMORANDUM BY THE COURT.