PACIENTE v. (and a Third-Party Action).

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

Angelo PACIENTE, et al., appellants, v. MBG DEVELOPMENT, INC., Respondent. (and a Third-Party Action).

Decided: October 30, 2000

THOMAS R. SULLIVAN, J.P., SONDRA MILLER, HOWARD MILLER and NANCY E. SMITH, JJ. Schreffler & Associates, New York, N.Y. (Neil F. Schreffler and The Breakstone Law Firm, P.C. [Jay L.T. Breakstone] of counsel), for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Frederick B. Simpson and Brendan T. Fitzpatrick of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Fredman, J.), entered August 31, 1999, as granted the defendant's motion for summary judgment dismissing the causes of action based upon Labor Law §§ 200, 240(1), and 241(6).

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff Angelo Paciente was allegedly injured when he slipped and fell down snow- and ice-covered stairs he was shoveling for his employer at a construction site owned by the defendant.   The Supreme Court properly dismissed the Labor Law § 200 cause of action since the defendant established that it did not exercise control or supervision over Paciente's work (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;  DeGennaro v. Long Is. R.R., 258 A.D.2d 496, 685 N.Y.S.2d 266).   Dismissal of the Labor Law § 240(1) cause of action was also proper since routine maintenance activities in a nonconstruction, nonrenovation context are not protected by Labor Law § 240 (see, Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938, 939, 641 N.Y.S.2d 221, 663 N.E.2d 1251;  Vanerstrom v. Strasser, 240 A.D.2d 563, 659 N.Y.S.2d 77).   The record also supports the Supreme Court's conclusion that the work performed by Paciente was not construction work within the meaning of Labor Law § 241(6) (see, Constantino v. Kreisler Borg Florman Gen. Constr. Co., 272 A.D.2d 361, 707 N.Y.S.2d 487;  Luthi v. Long Is. Resource Corp., 251 A.D.2d 554, 674 N.Y.S.2d 747;  Vernieri v. Empire Realty Co., 219 A.D.2d 593, 631 N.Y.S.2d 378).


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