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Mandart v. MBI Group

Notice of Appeal Was Functional Equivalent of 1292(b) Petition for Interlocutory Appeal

Justice Paul J. Baisley, Jr

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Defendants Iweiss Inc., Manhattan Business Interiors, Inc., and Liro Constructors, Inc. moved for summary judgment in plaintiff's action seeking damages for personal injuries he suffered when he fell into an opening containing theatrical backdrops. Defendants argued that they were not involved in any activity covered by the Labor Law at the time of plaintiff's accident, did not control the means or methods of his work, and did not have actual or constructive notice of the alleged dangerous condition that caused the accident. Defendants alternatively argued that plaintiff's Labor Law claim failed because it did not result from an elevation hazard, and that plaintiff was merely engaged in routine maintenance on behalf of the college such that defendants did not owe any duty to protect plaintiffs against dangerous conditions. The court granted defendants' motions, first agreeing that plaintiff's tripping accident was not covered by Labor Law 240(1), nor was he covered by 241(6) because he was not retained to perform a covered activity, but rather was injured while performing routine maintenance. Finally, the court found that defendants neither created nor had actual or constructive notice of the dangerous condition.