Ruth Pittman, etc., appellant, v. LLC

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

Ruth Pittman, etc., appellant, v. S.P. Lenox Realty, LLC, et al., respondents, et al., defendant.

2010–08313 (Index No. 24308/02)

Decided: January 17, 2012

DANIEL D. ANGIOLILLO, J.P. RUTH C. BALKIN THOMAS A. DICKERSON L. PRISCILLA HALL, JJ. Fortunato & Fortunato, PLLC, Brooklyn, N.Y. (Anthony J. Cugini, Jr., of counsel), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for respondents.

Argued—December 2, 2011

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated June 22, 2010, which granted the motion of the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants S.P. Lenox Realty, LLC, Rubbro Realty Corp., R.S. Management, Ltd., and Larry Richards for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against them is denied.

As noted in our prior decision and order in this action (see Pittman v. S.P. Lenox Realty, LLC, 49 AD3d 621), the plaintiff's decedent (hereinafter the decedent) died after being severely burned when a halogen lamp ignited liquid that he was using to refinish the floors in an apartment in a building owned by the defendant S.P. Lenox Realty, LLC, and managed by the defendant Rubbro Realty Corp., formerly known as R.S. Management, Ltd., where the individual defendant, Larry Richards, worked as a superintendent at the building.   These defendants (hereinafter collectively the defendants) moved for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against them.   In the order appealed from, the Supreme Court granted the motion.

Labor Law § 241(6) “imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting all areas' in which construction, excavation or demolition work is being performed ” (Rizzuto v. L.A. Wenger Constr.   Co., 91 N.Y.2d 343, 348, quoting Labor Law § 241[6] [emphasis added] ).   The scope of Labor Law § 241(6) is governed by section 23–1.4(b)(13) of the Industrial Code (see Joblon v. Solow, 91 N.Y.2d 457, 466;  Martinez v. City of New York, 73 AD3d 993, 997), which defines “construction work” to include all work “performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” (12 NYCRR 23–1.4[b][13] [emphasis added] ).

The defendants failed to establish, prima facie, that the plaintiff was not engaged in a specifically enumerated activity under 12 NYCRR 23–1.4(b)(13).   We have previously determined that the application of a protective coating to the roof of a building is the “functional equivalent” of painting, which is a specifically enumerated activity under 12 NYCRR 23–1.4(b)(13) (see Cummings v. Vargo, 63 AD3d 1718;  Artoglou v. Gene Scappy Realty Corp., 57 AD3d 460, 461;  McGovern v. Fordham Hill Owners Corp., 173 A.D.2d 162;  cf.  Osorio v. Kenart Realty, Inc., 35 AD3d 561;  Loreto v 376 St. Johns Condominium, Inc., 15 AD3d 454;  Aarons v. 401 Hotel, L.P., 12 AD3d 293).   Under the circumstances of this case, the application of polyurethane to a wooden floor likewise was the functional equivalent of “painting.”   Since the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, their motion should have been denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

ANGIOLILLO, J.P., BALKIN, DICKERSON and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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