The Second Department determined defendant (Nickel) was entitled to summary judgment dismissing the Labor Law 200(1), 246(1) and 240(1) causes of action. Plaintiff was injured when he fell of a ladder while attempting to fix an air conditioner which had stopped running. Plaintiff was not engaged in a protected activity under Labor Law 240(1) or 246(1). The Labor Law 200(1) cause of action was properly dismissed because defendant did not control the manner of plaintiff’s work:
Nickel submitted evidence sufficient to establish, prima facie, that the plaintiff was not engaged in an enumerated activity protected under Labor Law § 240(1) at the time of his accident. Furthermore, Nickel submitted evidence sufficient to establish, prima facie, that the plaintiff’s accident did not involve construction, demolition, or excavation and, accordingly, that Labor Law § 241(6) does not apply. In opposition, the plaintiff failed to raise a triable issue of fact.
Supreme Court properly granted that branch of Nickel’s motion which was for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it, albeit for a different reason. Nickel established, prima facie, that the ladder was not defective, and the plaintiff conceded that fact. Thus, the potential liability of Nickel, contrary to the Supreme Court’s finding, was not based on its actual or constructive notice of any dangerous or defective condition of the ladder … . Instead, the plaintiff allegedly was injured as a result of the manner in which he performed his work. Accordingly, recovery against Nickel under Labor Law § 200 or under the common law may only be found if Nickel had the authority to supervise or control the performance of the work … . Nickel established, prima facie, that it did not have authority to exercise supervision or control over the means and methods of the plaintiff’s work. In opposition, the plaintiff failed to raise a triable issue of fact … . Mammone v T.G. Nickel & Assoc., LLC, 2016 NY Slip Op 07300, 2nd Dept 11-9-16
LABOR LAW-CONSTRUCTION LAW (REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL)/LADDERS (REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL)