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PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT REPAIR, WHEN HE FELL FROM AN ELEVATED FORKLIFT, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff injured engaging in routine maintenance of an HVAC unit, not repair. Therefore defendant’s motion for summary judgment in this Labor Law 240 (1) action should have been granted. Plaintiff fell from a forklift which was used to lift him up to HVAC unit in the ceiling:

“In determining whether a particular activity constitutes repairing,’ courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)” … . “Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear'” … . …

At his deposition, the plaintiff testified that before the accident occurred, he determined that a belt was missing from the heating unit. Then, according to the plaintiff, while he was in the process of lowering a panel to see whether the pilot light to the heating unit was on or off, he slipped and fell. The plaintiff testified that, based on his experience, there was nothing extraordinary or unusual about a belt needing to be replaced or a pilot light going out on a heating unit. … [The] evidence showed that the plaintiff’s work “involved replacing components that require replacement in the course of normal wear and tear” and did not constitute “repairing” or any other enumerated activity … . Dahlia v S&K Distrib., LLC, 2019 NY Slip Op 03023, Second Dept 4-24-19

 

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NO APPEAL LIES FROM THE DENIAL OF A MOTION TO WITHDRAW A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT (SECOND DEPT).

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