WRAY v. 654 MADISON AVENUE ASSOCIATES

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

Leroy WRAY, Plaintiff-Respondent, v. 654 MADISON AVENUE ASSOCIATES, L.P., et al., Defendants-Appellants.

654 MADISON AVENUE ASSOCIATES, L.P., et al., Third-Party Plaintiffs-Appellants-Respondents, v. P.S. MARCATO ELEVATOR CO., INC., Third-Party Defendant-Respondent-Appellant.

Decided: August 20, 1998

Before MILONAS, J.P., WALLACH, WILLIAMS, TOM and MAZZARELLI, JJ. Lucille A. Fontana, for Plaintiff-Respondent. Elizabeth Anne Bannon, for Defendants-Appellants and Third-Party Plaintiffs-Appellants-Respondents. Charles S. Hefter, for Third-Party Defendant-Respondent-Appellant.

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered July 11, 1997, which, in an action by plaintiff elevator maintenance worker against defendants building owners for common-law negligence and violations of Labor Law §§ 241(6) and 200, and a third-party action by the building owners against plaintiff's employer, denied the owners' and the employer's motions for summary judgment, unanimously modified, on the law, to dismiss so much of the second cause of action as is based upon a violation of Labor Law § 241(6), and otherwise affirmed, without costs.

 We reject appellants' claims that the owners bore no common-law responsibility for plaintiff's injuries caused by the dangerous condition he was called upon to repair, since the accident was caused not by the noise and vibration in the compensating elevator sheave that plaintiff was called upon to remedy, but by the absence of a pit stop shut-off switch (see, 9 NYCRR § 1062.3 [d];  compare, Kowalsky v. Conreco Co., 264 N.Y. 125, 190 N.E. 206).   We agree with the IAS court that an issue of fact exists as to whether this particular building was required to have such a switch.   However, it was error not to dismiss so much of the action as claims a violation of Labor Law § 241(6), since plaintiff was not engaged in construction, excavation or demolition work at the time of the accident (see, Spiteri v. Chatwal Hotels, 247 A.D.2d 297, 299, 669 N.Y.S.2d 282, 285).   We have considered appellants' other arguments and find them to be without merit.

MEMORANDUM DECISION.