WILLIAMS v. PERKINS RESTAURANTS INC

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

Eva WILLIAMS, Respondent-Appellant, v. PERKINS RESTAURANTS, INC., and Brambury Associates, Appellants-Respondents, et al., Defendant.

PERKINS RESTAURANTS, INC., et al., Third-Party Plaintiffs, v. FAT FREE SYSTEMS, INC., Third-Party Defendant-Appellant.

Decided: December 31, 1997

Before DENMAN, P.J., and GREEN, PINE, BALIO and FALLON, JJ. Slye & Burrows by Donald DiBenedetto, Watertown, for Fat Free Systems, Inc. Kenny & Kenny, Syracuse, for Eva Williams. Costello, Cooney & Fearon, L.L.P., Syracuse, for Perkins Restaurants, Inc. and Brambury Associates.

Plaintiff commenced this action to recover for injuries she allegedly sustained in a work-related accident.   Her employer, third-party defendant, Fat Free Systems, Inc. (Fat Free), had been hired by defendant-third-party plaintiff Perkins Restaurants, Inc. (Perkins), to clean the kitchen exhaust system at its restaurant in Oswego.   Fat Free performed the cleaning operation at regular intervals for that Perkins restaurant.   Plaintiff was allegedly injured when she fell as she descended a ladder from the roof of the restaurant after cleaning grease from the exhaust fans and vent.   In a single cause of action, plaintiff alleges that defendants violated Labor Law § 240(1) and § 241(6).   Fat Free and defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for partial summary judgment on Labor Law § 240(1) liability.   Supreme Court granted the motions insofar as they sought summary judgment dismissing that part of plaintiff's cause of action alleging defendants' violation of section 241(6).   The court denied the motions insofar as they sought judgment with respect to that part of the cause of action alleging defendants' violation of section 240(1) and denied plaintiff's cross motion.

 The court erred in denying the motions insofar as they sought summary judgment dismissing that part of plaintiff's cause of action alleging a violation of Labor Law § 240(1).   That section does not apply to the work plaintiff was performing when she was injured.  “[T]he ‘cleaning’ encompassed under the statute does not include ‘routine’ cleaning in a non-construction, non-renovation context (see, Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938, 641 N.Y.S.2d 221, 663 N.E.2d 1251 [rearg. denied 88 N.Y.2d 875, 645 N.Y.S.2d 449, 668 N.E.2d 420];  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)” (Bermel v. Board of Educ., 231 A.D.2d 663, 647 N.Y.S.2d 548).   We, therefore, modify the order by granting the motions in their entirety and dismissing the complaint.

In her brief, plaintiff does not challenge the order insofar as it granted summary judgment dismissing that part of her cause of action alleging defendants' violation of Labor Law § 241(6).   We, therefore, deem that issue abandoned (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: