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Owens v. City of New York

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 13, 2010

WILLIAM A. OWENS, APPELLANT,
v.
CITY OF NEW YORK, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Miller, J.), entered June 30, 2009, as denied that branch of his motion which was for summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1) and granted that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

JOSEPH COVELLO, J.P., ANITA R. FLORIO, HOWARD MILLER RANDALL T. ENG, JJ.

(Index No. 39871/06)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff William A. Owens, a maintenance worker for the New York City school system, allegedly was injured when he fell from a ladder while he was performing work on a door's "slide bolt" locking mechanism. He subsequently commenced this action against the defendants City of New York and the New York City Department of Education.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was not engaged in an activity protected under Labor Law § 240(1), but was instead performing routine maintenance when he fell (see Thompson v 1701 Corp., 51 AD3d 904; Azad v 270 5th Realty Corp., 46 AD3d 728). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240(1), and granted that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).

The parties' remaining contentions have been rendered academic in light of our determination.

COVELLO, J.P., FLORIO, MILLER and ENG, JJ., concur.

20100413

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