DiBENEDETTO v. PORT AUTH. OF N.Y. AND N.J

Plaintiff's common-law negligence claim was properly dismissed since there was no evidence that defendants had actual or constructive notice of a defective or dangerous condition that caused his fall from the fender of a crane (see, Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 838).

Although we agree with plaintiff that he was not merely a volunteer but an employee within the terms of the Labor Law (see, Daniello v. Holy Name Church, 286 A.D.2d 268, 269; Smith v. Torre, 247 A.D.2d 896; cf.,Mordorfsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577), his Labor Law § 200 claim fails because the evidence is insufficient to raise a triable issue as to whether defendants exercised control or supervision over his work (see, Comes v. New York State Elec. Gas, 82 N.Y.2d 876;Dilena v. Irving Reisman Irrevocable Trust, 263 A.D.2d 375; Buccini v. 1568 Broadway Assocs., 250 A.D.2d 466, 468-469). Plaintiff's Labor Law § 240(1) and 241(6) claims were properly dismissed since he was not engaged in "construction work" when he fell (see, Agli v. Turner Constr. Co. 246 A.D.2d 16, 24; Dilena v. Irving Reisman Irrevocable Trust,supra; Phillips v. City of New York, 228 A.D.2d 570, 571). Plaintiff's work did not involve "making a significant physical change to the configuration or composition of the building or structure" (Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960), but rather, by plaintiff's own account, was a simple activity, involving the removal of two bolts and replacement of a part, and taking no longer than 30 minutes (see, Jehle v. Adams Hotel, 264 A.D.2d 354, 355). The crane was operational before and after replacement of the part. The dismissal of plaintiff's Labor Law § 240(1) is sustainable on the separate ground that plaintiff was not subject to an elevation-related risk within the meaning of that statute (Bond v. York Hunter Constr., Inc., 95 N.Y.2d 883, 885, citing Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514-515).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.