JONES v. BARTLETT

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Supreme Court, Appellate Division, Fourth Department, New York.

Stephanie JONES, As Administratrix of the Estate of James Jones, Deceased, Plaintiff-Appellant, v. Richard BARTLETT and Bart-Rich Properties, A General Partnership, Defendants-Respondents.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, KEHOE and BALIO, JJ. Walter D. Kogut, Syracuse, for Plaintiff-Appellant. Louis J. Viviani, Syracuse, for Defendants-Respondents.

 We agree with plaintiff that defendants should have moved to amend their answer to assert the defense based on Workers' Compensation Law § 29(6) before including that defense as one of the bases for their motion for summary judgment dismissing the amended complaint (see, Cole v. Rappazzo Elec. Co., 267 A.D.2d 735, 738, 700 N.Y.S.2d 277;  see also, Murray v. City of New York, 43 N.Y.2d 400, 404-406, 401 N.Y.S.2d 773, 372 N.E.2d 560, rearg. dismissed 45 N.Y.2d 966, 412 N.Y.S.2d 1025, 384 N.E.2d 692).   We conclude, however, that Supreme Court nevertheless properly granted defendants' motion and denied plaintiff's cross motion for summary judgment on liability on the Labor Law § 240(1) and § 241(6) causes of action.   Plaintiff's decedent was hanging a banner from a sign frame when he fell from his ladder and thus he was not engaged in work protected by Labor Law § 240(1) (see, Cook v. Parish Land Co., 239 A.D.2d 956, 659 N.Y.S.2d 601;  cf., Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318 [involving work on an electric sign affixed flat against a building wall];  Neville v. Deters, 175 A.D.2d 597, 572 N.Y.S.2d 256 [involving replacement of permanent sign affixed to a building] ).   Nor was the work of plaintiff's decedent protected by Labor Law § 241(6) because the injuries of plaintiff's decedent did not result from an accident in which construction, demolition or excavation work was being performed (see, Vasey v. Pyramid Co. of Buffalo, 258 A.D.2d 906, 907, 685 N.Y.S.2d 362;  Cook v. Parish Land Co., supra;  Walton v. Devi Corp., 215 A.D.2d 60, 632 N.Y.S.2d 898, lv. denied 87 N.Y.2d 809, 642 N.Y.S.2d 195, 664 N.E.2d 1258).   The court properly granted summary judgment dismissing the common-law negligence cause of action because defendants established that they were out-of-possession landlords who did not retain control of the premises and were not contractually obligated to maintain or repair the premises (see, Baker v. Getty Oil Co., 242 A.D.2d 644, 645, 663 N.Y.S.2d 40, lv. denied 93 N.Y.2d 801, 687 N.Y.S.2d 625, 710 N.E.2d 272).   Contrary to plaintiff's contention, the retention by defendant Bart-Rich Properties, a lessor, of the right to inspect the premises is insufficient to raise a question of fact on this issue (see, Dalzell v. McDonald's Corp., 220 A.D.2d 638, 632 N.Y.S.2d 635, lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 17, 673 N.E.2d 1244).   In addition, plaintiff failed to raise an issue of fact whether defendants created a dangerous condition or failed to remedy it after receiving actual or constructive notice of it (see, Winecki v. West Seneca Post 8113, 227 A.D.2d 978, 643 N.Y.S.2d 292).

Order unanimously affirmed without costs.

MEMORANDUM: