STADTMULLER v. METROPOLITAN LIFE INSURANCE CO

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

Jerome STADTMULLER, et al., Plaintiffs-Appellants, v. METROPOLITAN LIFE INSURANCE CO., et al., Defendants-Respondents.

Decided: April 25, 2000

ROSENBERGER, J.P., NARDELLI, TOM and WALLACH, JJ. Arnold E. DiJoseph III, for plaintiffs-appellants. William R. Brick, Jr., for defendants-respondents.

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about April 9, 1999, which, insofar as appealed from as limited by plaintiff's brief, denied plaintiff's motion for summary judgment on his Labor Law § 240(1) claim and granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff's Labor Law § 240(1) claim was properly dismissed because he was not, as he claimed, “altering” the building at the time of his fall from a ladder.   Plaintiff's replacement of an air filter and chemical media modules on an air-purification unit was part of the routine, quarterly maintenance recommended by the manufacturer and was not performed as part of construction or renovation work.   Since the unit was neither inoperable nor malfunctioning, it cannot be argued that the work was a “repair”.   Thus, his activities were not encompassed within the statute (see, Jehle v. Adams Hotel Associates, 264 A.D.2d 354, 355, 695 N.Y.S.2d 22, 24;  Koch v. E.C.H. Holding Corp., 248 A.D.2d 510, 511, 669 N.Y.S.2d 896, lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269).

MEMORANDUM DECISION.