NORIEGA v. Herbert Construction Co., Inc., Defendant.

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

Oscar NORIEGA, Plaintiff-Respondent, v. STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT NATIONAL ASSOCIATION, et al., Defendants-Appellants, Herbert Construction Co., Inc., Defendant.

Decided: April 18, 2000

WILLIAMS, J.P., ELLERIN, LERNER, ANDRIAS and FRIEDMAN, JJ. Steven B. Dorfman, for Plaintiff-Respondent. Carol R. Finnochio, for Defendants-Appellants.

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 3, 1999, which, to the extent appealed from, denied defendants-appellants' cross motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion to the extent awarding defendants-appellants summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and otherwise affirmed, without costs.

 The motion court erred in denying defendants-appellants' summary judgment dismissing plaintiff's Labor Law § 240(1) claim because plaintiff's fall was not, under the circumstances of its occurrence, attributable to the sort of elevation-related risk against which Labor Law § 240(1) was intended to afford protection (see, Galloway v. Tenth City Assocs., 228 A.D.2d 254, 255, 644 N.Y.S.2d 30).   The motion court, however, properly denied defendants-appellants' cross motion for summary judgment insofar as it sought dismissal of plaintiff's Labor Law § 241(6) claim.   Contrary to appellants' arguments in support of dismissing that claim, plaintiff was lawfully frequenting the premises in question at the time of his accident (see, 12 NYCRR § 23-1.4[b][39];  Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577, 561 N.Y.S.2d 892, 563 N.E.2d 263), and plaintiff's work cleaning office window setbacks may constitute “construction” within the meaning of Labor Law § 241(6) (see, 12 NYCRR § 23-1.4[b][13] ).   Finally, in view of factual questions as to whether defendants-appellants had notice of the condition that allegedly caused plaintiff's harm, the motion court properly denied defendants-appellants summary judgment dismissing plaintiff's common-law negligence claim.

MEMORANDUM DECISION.