DiBenedetto v. Port Authority of New York and New Jersey , 742 N.Y.S.2d 207 ( 2002 )

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 12, 2000, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs 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 American Museum of Natural History, 67 NY2d 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 AD2d 268, 269; Smith v Torre, 247 AD2d 896; cf., Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 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 Corp., 82 NY2d 876; Dilena v Irving Reisman Irrevocable Trust, 263 AD2d 375; Buccini v 1568 Broadway Assoc., 250 AD2d 466, 468-469). Plaintiffs 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 AD2d 16, 24; Dilena v Irving Reisman Irrevocable Trust, supra; Phillips v City of New York, 228 AD2d 570, 571). Plaintiffs work did not involve “making a significant physical change to the configuration or composition of the building or structure” (Weininger v Hagedorn & Co., 91 NY2d 958, 960), but rather, by plaintiffs 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 AD2d 354, 355). The crane was operational before and after replacement of the part. The dismissal of plaintiffs Labor Law § 240 (1) claim 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., 95 NY2d 883, 885, citing Rocovich v Consolidated Edison Co., 78 NY2d 509, 514-515). Concur— Mazzarelli, J.P., Saxe, Sullivan and Wallach, JJ.