1 No. 169 SSM 19
Richard Esposito,
Appellant, v. New York City Industrial
Development Agency, et al.,
Respondents.
2003 NY Int. 134
November 20, 2003
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Hunter J. Shkolnik, for appellant.
Submitted by Ross P. Masler, for respondent New York
City Industrial Development Agency.
Submitted by Timothy R. Capowski, for respondents
American International Group, Inc. and American International
Realty Corporation.
MEMORANDUM
The order of the Appellate Division should be affirmed,
with costs. Plaintiff was injured after falling from a ladder while
attempting to remove a cover from an air conditioning unit on the
22nd floor of a commercial building in Manhattan. He was a
member of Local 94 Operating Engineers Union, which did
maintenance work for the building. American International Realty
("AIR"), a subsidiary of American International Group, leased the
building from its owner, the New York City Industrial Development
Agency. Plaintiff sued AIR, AIG, NYCIDA and the New York City
Environmental Development Corporation in Supreme Court, New York
County for violations of Labor Law §§ 240 (1) and 241 (6). On
the date of the accident, plaintiff was performing a monthly
maintenance check of the air conditioning units on the 22nd
through 29th floors. This included taking amperage readings and
checking belts, sheaves and bearings. When checking the 22nd
floor unit, plaintiff discovered a low amperage reading and heavy
vibrations. The motor appeared worn and loose, and the belts
were "chewed up." He left and returned with tools and parts
needed to fix the machine. As he climbed a ladder and began to
remove the unit's cover a second time, the bottom of the ladder
"kicked out" and he fell. Supreme Court held that plaintiff could not sustain a
claim under section 240 (1), because he was not engaged in any of
the covered activities. The Appellate Division affirmed, as do
we. Section 240 (1) applies where an employee is engaged "in the
erection, demolition, repairing, altering, painting, cleaning or
pointing of a building or structure." Although repairing is
among the enumerated activities, we have distinguished this from
"routine maintenance" ( Smith v Shell Oil >,, 85 NY2d 1000, 1002
[1995]). The work here involved replacing components that
require replacement in the course of normal wear and tear. It
therefore constituted routine maintenance and not "repairing" or
any of the other enumerated activities. As for Labor Law § 241 (6), we have held it
inapplicable outside the construction, demolition or excavation
contexts ( see Nagel v D & R Realty Corp., , 99 NY2d 98 2002]).
Therefore, the maintenance work involved in this case fell
outside that section's reach. We also agree that defendants
satisfactorily established that plaintiff was a special employee
of AIR.