| Bautista v 165 W. End Ave. Assoc., L.P. |
| 2016 NY Slip Op 02540 [137 AD3d 714] |
| March 31, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Pedro Bautista, Appellant, v 165 West End Avenue Associates, L.P., Defendant, and The 165 West End Avenue Condominium et al., Respondents/Third-Party Plaintiffs-Respondents. Lyn Blacksberg, Third-Party Defendant-Respondent. (And Another Third-Party Action.) |
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.
Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for the 135 West End Avenue Condominium and 165 West End Avenue Owners Corp., respondents.
Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano of counsel), for Lyn Blacksberg, respondent.
Judgment, Supreme Court, New York County (Debra A. James, J.), entered February 28, 2014, insofar as appealed from as limited by the briefs, dismissing the Labor Law § 241 (6) claim as against defendant 165 West End Avenue Owners Corp. (Owners), unanimously affirmed, without costs.
Plaintiff allegedly was injured when a screw that he was removing in the course of replacing window balances in a cooperative apartment unit "jumped" and struck him in the eye. Plaintiff is correct that his work replacing window balances constitutes "maintenance" pursuant to Industrial Code (12 NYCRR) § 23-1.4 (b) (13). However, because plaintiff did not perform the work in the context of construction, demolition or excavation, his Labor Law § 241 (6) claim was correctly dismissed (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526 [2003]; Martinez v Morris Ave. Equities, 30 AD3d 264 [1st Dept 2006]). Concur—Tom, J.P., Sweeny, Manzanet-Daniels, Gische and Gesmer, JJ.