Schroeder v. Kalenak Painting & Paperhanging, Inc.

Appeal from an order of the Supreme Court, Monroe County (Robert J. Lunn, J.), entered February 25, 2005 in a personal injury action. The order, among other things, granted defendants’ motions for summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries she sustained when she fell from a ladder while wallpapering at an apartment complex owned by defendant Morris Massry. At the time of the accident, plaintiff was working as an independent subcontractor for defendant Kalenak Painting & Paperhanging, Inc. Plaintiff conceded in Supreme Court that she did not have a valid Labor Law § 200 claim or common-law negligence cause of action, and thus only her claims pursuant to Labor Law § 240 (1) and § 241 (6) are at issue on this appeal. We conclude that the court properly granted those parts of the respective motions of defendants for summary judgment dismissing those claims against them.

Contrary to plaintiff’s contention, wallpapering is not a protected activity under Labor Law § 240 (1), and the court therefore properly granted those parts of defendants’ motions seeking summary judgment dismissing that claim (see LaFontaine v Albany Mgt., 257 AD2d 319 [1999], lv denied 94 NY2d 751 [1999]). We reject the contention of plaintiff that her activities were part of a larger repair project that falls within the ambit of Labor Law § 240 (1). The record establishes that, “[fin. fact, none of the activities enumerated in the statute was underway, and any future repair work would not even be conducted by . . . plaintiffs supervisor, but [instead would be conducted] by some other entity” (Martinez v City of New York, 93 NY2d 322, 326 [1999]). The remainder of the work being performed was not, as plaintiff contends, an integral part of plaintiff’s work, and it is therefore immaterial whether the remainder of the work falls within the ambit of Labor Law § 240 (1).

We further conclude that the court properly granted those parts of defendants’ motions for summary judgment dismissing the Labor Law § 241 (6) claim. Defendants met their burden with respect thereto by establishing as a matter of law that any alleged violation of a provision of the Industrial Code was not a proximate cause of plaintiff’s injuries (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505 [1993]), and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Plaintiffs reliance upon the alleged violation of 12 NYCRR 23-1.21 (e) (3) is misplaced. Pursuant to that regulation, “[standing stepladders shall be used only on firm, level footings” (id.). Although that regulation is sufficiently specific to support a Labor Law § 241 (6) claim (see Losurdo v Skyline Assoc., L.P., 24 AD3d 1235 [2005]), we conclude that plaintiff failed to raise an issue of fact whether the alleged failure to use the stepladder on “firm, level footings” within the meaning of that regulation was a proximate cause of the accident. Plaintiff contends that the ladder may have been placed on a piece of drywall in violation of the regulation, based on her discovery of that piece of drywall wedged into the foot of the ladder two weeks after the accident. That contention is mere speculation and thus is insufficient to defeat the motions (see generally Raczka v Nichter Util. Constr. Co., 272 AD2d 874 [2000]; Anarumo v Terminal Constr. Corp., 143 AD2d 616, 617 [1988]).

All concur except Gorski and Green, JJ., who dissent in part and vote to modify in accordance with the following memorandum.