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

Daniel RUKAJ, Plaintiff-Appellant, v. EASTVIEW HOLDINGS, LLC, et al., Defendants-Respondents.

Decided: January 23, 2007

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, MALONE, JJ. Gartner & Bloom, P.C., New York (Arthur P. Xanthos of counsel), for appellant. Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 13, 2006, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's causes of action under Labor Law § 240(1) and § 200, and denied plaintiff's cross motion for partial summary judgment on the issue of defendants' liability under Labor Law § 240(1), unanimously affirmed, without costs.

The record establishes that the cleaning plaintiff was performing at the time of the accident was part of the “preventive maintenance” of certain “installed equipment” at defendants' building that plaintiff's employer had contracted to provide, including once-a-year “pressure washing” of the condenser coils of the building's exterior air conditioning units.   The record further establishes that just prior to the accident, plaintiff climbed a steel ladder affixed to the building to access the roof where the air conditioning units were located and then, once on the roof, used a rope to hoist materials up.   However, in bringing up the power washer to the roof, plaintiff used a different method, tying the washer to the rope, and then climbing the ladder by holding onto its rungs with his left hand and using his right hand to guide the washer up the ladder.   Plaintiff testified that as he neared the roof, his left arm began to weaken, he dropped the washer he was holding with his right hand, and he fell.   Plaintiff's coworker similarly testified that plaintiff fell because of fatigue.

 Plaintiff has no cause of action under Labor Law § 240(1), there being no claim of any ongoing construction or demolition activity at the site at the time of the accident, and the record establishing that plaintiff fell off the ladder while engaged in the cleaning of air conditioning units routinely performed pursuant to a preventive maintenance contract (see Broggy v. Rockefeller Group, Inc., 30 A.D.3d 204, 818 N.Y.S.2d 6 [1st Dept. 2006] [commercial interior window cleaning unrelated to building construction, demolition or repair work constitutes routine maintenance not covered by Labor Law § 240(1), overruling, inter alia, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284 [1997]];  see also Diaz v. Applied Digital Data Sys., 300 A.D.2d 533, 753 N.Y.S.2d 514 [2d Dept. 2002];  Pound v. A.V.R. Realty Corp., 271 A.D.2d 424, 706 N.Y.S.2d 886 [2d Dept. 2000] ).   Moreover, even if the activity in which plaintiff was engaged was covered under Labor Law § 240(1), his conduct in climbing the ladder while guiding the pump with one hand and using the other to hold onto the ladder steps was the sole proximate cause of his fall off the ladder (see Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 795 N.Y.S.2d 490, 828 N.E.2d 592 [2005] ).

 Nor does plaintiff have a cause of action under Labor Law § 200 based on the claim that defendants created a dangerous condition at the work site by providing an affixed ladder with inadequate clearance to the back wall.   Plaintiff's deposition testimony did not assert that he slipped off the ladder or had improper footing as he climbed up it, or otherwise attribute his fall to any defect in the ladder.   Rather, both plaintiff and his coworker testified that plaintiff fell because of fatigue.   Thus, there is no evidence that the alleged inadequate clearance proximately caused plaintiff's fall (cf. Mendez v. Union Theol. Seminary in City of N.Y., 17 A.D.3d 271, 793 N.Y.S.2d 420 [2005] [scaffolding contractor can be held liable under section 200 for providing defective scaffold, even though it did not supervise plaintiff's work, given issues of fact as to whether the alleged defect dated from installation of scaffold and caused plaintiff's fall] ).