HENRIQUEZ v. NEW 520 GSH LLC

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

Ramsey HENRIQUEZ, et al., Plaintiffs–Appellants, v. NEW 520 GSH LLC, et al., Defendants–Respondents.

Decided: October 27, 2011

ANDRIAS, J.P., SWEENY, ACOSTA, FREEDMAN, MANZANET–DANIELS, JJ. Leav & Steinberg, LLP, New York (Edward A. Steinberg of counsel), for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for respondents.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 19, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiffs' claim under Labor Law § 200, unanimously affirmed, without costs.

The record shows that plaintiff Ramsey Henriquez, an elevator maintenance mechanic, was injured when the elevator car in which he was riding rapidly descended to the bottom of the elevator shaft.   Plaintiff and a coworker were taking the subject car, which had been taken out of service, to the building's twelfth floor to consult with the building's engineer about problems with the car.

 Dismissal of the Labor Law § 200 claim was proper because defendants and plaintiff's employer New York Elevator (NYE) had entered into a contract providing that NYE would provide a broad range of services to defendants, including a duty to “cover a complete maintenance service in every respect.”   As a result, “[t]here is no cause of action under Labor Law § 200 because ‘[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he has undertaken to fix’ ” (McCullum v. Barrington Co. & 309 56th St. Co., 192 A.D.2d 489, 489, 597 N.Y.S.2d 295 [1993], quoting Kowalsky v. Conreco Co., 264 N.Y. 125, 128, 190 N.E. 206 [1934];  see Brugnano v. Merrill Lynch & Co., 216 A.D.2d 18, 19, 627 N.Y.S.2d 635 [1995], lv. dismissed in part, denied in part 86 N.Y.2d 880, 635 N.Y.S.2d 942, 659 N.E.2d 765 [1995] ).

 Plaintiffs' reliance on the doctrine of res ipsa loquitur is misplaced.   Plaintiffs failed to demonstrate that the accident could not have been caused by any voluntary action or contribution on plaintiff's part (see Marszalkiewicz v. Waterside Plaza, LLC, 35 A.D.3d 176, 177, 826 N.Y.S.2d 34 [2006] ).

We have considered plaintiffs' remaining contentions and find them unavailing.