        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

862
CA 14-00026
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


DAVID LEATHERS AND BRENDA LEATHERS,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

ZAEPFEL DEVELOPMENT COMPANY, INC., TOWN OF
AMHERST INDUSTRIAL DEVELOPMENT AGENCY AND
NORTHPOINTE COMMERCE PARK, LLC,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


CONNORS & VILARDO, LLP, BUFFALO (LAWRENCE J. VILARDO OF COUNSEL), AND
DOLCE & PANEPINTO, P.C., FOR PLAINTIFFS-APPELLANTS.

LONDON FISCHER, LLP, NEW YORK CITY (CHRISTOPHER RUGGIERO OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered May 8, 2013. The judgment granted the motion
of defendants for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by David
Leathers (plaintiff) when he fell from a stepladder while climbing out
of a corrosion chamber owned by his employer, Bureau Veritas Consumer
Products Services, Inc. (BV). BV, which provides third-party quality
and safety testing for consumer products, subleased a commercial
building from defendant Northpointe Commerce Park, LLC (Northpointe).
Northpointe, in turn, leased the property from defendant Town of
Amherst Industrial Development Agency (IDA), which owned the property
under a sale and leaseback agreement with Northpointe’s predecessor in
interest. Defendant Zaepfel Development Company, Inc. (Zaepfel)
shares common ownership with Northpointe and manages its properties.

     Plaintiff worked as a senior technician at BV and was assigned to
the corrosion chamber, which simulates the long-term effects of
weather on metal products by exposing them to a saline solution. His
job duties included cleaning the chamber between tests. On the date
of the accident, plaintiff opened the lid to the chamber and noticed
water on the bottom of the chamber, which indicated that the drain
inside the chamber was clogged. Plaintiff took apart the PVC piping
                                 -2-                           862
                                                         CA 14-00026

leading to the drain and attempted to remove the clog using an air
hose and fish tape. When that did not work, he sprayed water into the
pipe, which broke up the clog. Plaintiff sprayed down the chamber
from the outside but, because the floor of the chamber was still
dirty, he climbed into the chamber to clean the floor. As plaintiff
was exiting the chamber onto a stepladder, the ladder became unstable
and he fell to the ground.

     Supreme Court granted defendants’ motion for summary judgment
dismissing the amended complaint and denied plaintiffs’ cross motion
for partial summary judgment on liability under Labor Law § 240 (1),
and this appeal ensued. We note at the outset that plaintiffs have
abandoned any contention with respect to the propriety of the court’s
dismissal of the Labor Law § 241 (6) and common-law negligence causes
of action (see Ciesinski v Town of Aurora, 202 AD2d 984, 984).

     Addressing first the Labor Law § 240 (1) cause of action, we
conclude that plaintiff was not “repairing” the corrosion chamber at
the time he was injured, and thus that he was not engaged in a
protected activity under section 240 (1). Rather, defendants
established as a matter of law that plaintiff was involved in “routine
maintenance in a non-construction, non-renovation context” (Melski v
Fitzpatrick & Weller, Inc., 107 AD3d 1447, 1448; see Abbatiello v
Lancaster Studio Assoc., 3 NY3d 46, 53; Wein v Amato Props., Inc., 30
AD3d 506, 507). The court therefore properly granted that part of
defendants’ motion with respect to that cause of action and denied
plaintiffs’ cross motion. Neither the corrosion chamber nor the
components of the “drainage system,” i.e., the floor drain and plastic
piping, were in need of “repair.” Rather, the drain was clogged, at
least in part as a result of the normal operation of the chamber.
Plaintiff testified at his deposition that the clog consisted of
“paper and what looked to be like pieces of wooden dowel from like Q-
tips that they use,” i.e., parts of samples that had been placed in
the chamber on prior occasions, as well as an unknown substance.
Although plaintiff and his supervisor testified that dirty conditions
in the chamber could potentially compromise test results, there is no
evidence that the chamber was “ ‘inoperable or malfunctioning prior to
the commencement of the work’ ” (Pieri v B&B Welch Assoc., 74 AD3d
1727, 1728). Further, there is no evidence that plaintiff had to use
specialized tools or any tools at all to take apart the plastic
piping. Indeed, defendants’ expert averred that the PVC piping had no
mechanical fasteners and was “merely a friction fit, therefore, it
would be a routine task to remove.” Plaintiff then used an air hose,
metal wire, and a water hose to remove the clog, all of which were
readily accessible to and used by him in the course of his employment.

     Plaintiffs rely heavily on two cases for the proposition that
unclogging a pipe constitutes repair work: Benfanti v Tri-Main Dev.
(231 AD2d 855) and Crossett v Schofell (256 AD2d 881). We conclude
that those cases are distinguishable. The injured plaintiff in
Benfanti was an electrician who fell eight feet from a ladder to the
ground “while attempting to loosen a drain pipe” (231 AD2d at 855).
This Court concluded that “removal of a portion of the drain pipe
leading to the building’s main sewer line for the purpose of
                                 -3-                           862
                                                         CA 14-00026

unclogging and repairing it constitutes the repair of a structure
within the meaning of Labor Law § 240 (1), rather than routine
maintenance” (id. [emphasis added]). In Crossett, a dairy farmer was
“forced to stop filling his silo with haylage when the fill pipe
plugged up and became inoperable,” and he hired plaintiff Kenneth M.
Crossett (Crossett) “[t]o correct th[e] problem” (256 AD2d at 881).
In order to “make the repair,” Crossett had to “climb a steel ladder
affixed to the silo adjacent to the fill pipe” (id.). As he was
“reinstalling the pipe, his safety belt broke, causing him to fall 25
feet to the ground” (id.). The Third Department concluded that
“inasmuch as the fill pipe was inoperable or malfunctioning,
[Crossett] was engaged in repair work and, thus, may maintain a claim
under Labor Law § 240 (1)” (id. at 882 [emphasis added]). In our
view, plaintiff’s actions in this case are far more akin to clearing
gutters of debris, an activity that is not protected under Labor Law §
240 (1) (see e.g. Hull v Fieldpoint Community Assn., Inc., 110 AD3d
961, 962, lv denied 22 NY3d 862; Berardi v Coney Is. Ave. Realty, LLC,
31 AD3d 590, 591; Beavers v Hanafin, 88 AD2d 683, 683-684). Because
plaintiff was engaged in routine maintenance in a non-construction,
non-renovation context, he is not entitled to the “ ‘extraordinary
protections of Labor Law § 240 (1)’ ” (Signs v Crawford, 109 AD3d
1169, 1170; see Chizh v Hillside Campus Meadows Assoc., 4 AD3d 743,
743-744, affd 3 NY3d 664; Selca v Dutchess Heritage Sq. Partners, LLC,
115 AD3d 734, 735).

     We likewise conclude that the court properly granted that part of
defendants’ motion with respect to the Labor Law § 200 cause of
action. Plaintiff’s accident resulted from the manner in which the
work was performed, not from any dangerous condition on the premises,
and defendants exercised no supervisory control over the work (see
Lombardi v Stout, 80 NY2d 290, 295; Ortega v Puccia, 57 AD3d 54, 62-
63).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
