FRANCO v. <<

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

Vincent FRANCO, Plaintiff-Appellant, v.

Joseph JEMAL, et al., Defendants-Respondents/Third-Party Plaintiffs, v. B & G Industries, Inc., et al., Third-Party Defendants-Respondents.

Decided: February 22, 2001

MAZZARELLI, J.P., ANDRIAS, WALLACH, SAXE and BUCKLEY, JJ. Rodney S. Lapidus, for Plaintiff-Appellant. Elizabeth Anne Bannnon, for Defendants-Respondents/Third-Party Plaintiffs. Brendan T. Fitzpatrick, Raymond Power, Jr., for Third-Party Defendants-Respondents.

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered October 29, 1999, which denied plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim and granted defendants' cross-motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendants' cross-motion for summary judgment denied, plaintiff's motion for summary judgment granted, and the complaint reinstated.

 Plaintiff, a journeyman electrician, was injured when he fell from a ladder while attempting to repair a rooftop central air conditioning unit.   The IAS court granted defendants' cross-motion for summary judgment on the authority of Rowlett v. Great South Bay, 237 A.D.2d 183, 655 N.Y.S.2d 16, lv. denied 90 N.Y.2d 809, 664 N.Y.S.2d 271, 686 N.E.2d 1366, holding that plaintiff's replacing of a switch on the rooftop air conditioner was not the type of work to which the protections of the scaffold law apply.   While the plaintiff in Rowlett was performing routine maintenance, Franco was assigned to perform the repair in this case because the rooftop air conditioner was inoperable.   The air conditioning system here was a fixture and, as such, it had become part of the building for purposes of section 240 (Sprague v. Peckham Materials Corp., 240 A.D.2d 392, 393, 658 N.Y.S.2d 97).   Since Franco was repairing a part of the building and not engaged in routine maintenance, the protections of Labor Law § 240(1) clearly applied (Stadtmuller v. Metropolitan Life Insurance Company, 271 A.D.2d 361, 707 N.Y.S.2d 158;  Craft v. Clark Trading Corp., 257 A.D.2d 886, 684 N.Y.S.2d 48;  Fuller v. National Commodity Clearance Center, 256 A.D.2d 1126, 684 N.Y.S.2d 723).

 While plaintiff made out his prima facie case for § 240(1) liability, defendants failed to raise a triable issue of fact as they offered no more than speculation as to whether the accident happened as plaintiff described.   That the accident was unwitnessed presents no bar to summary judgment in favor of plaintiff.   Where, as here, there is no substantiated challenge to credibility, plaintiff's motion should have been granted (see, Klein v. City of New York, 89 N.Y.2d 833, 834-835, 652 N.Y.S.2d 723, 675 N.E.2d 458;  Casabianca v. Port Authority of New York and New Jersey, 237 A.D.2d 112, 113, 655 N.Y.S.2d 2).