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NAKIS v. APPLE COMPUTER, INC.

115747/04

24 Misc.3d 967 (2009)

879 N.Y.S.2d 910

MICHAEL NAKIS, Plaintiff, v. APPLE COMPUTER, INC., et al., Defendants. APPLE COMPUTER, INC., Third-Party Plaintiff, v. J.T. MAGEN & CO., Third-Party Defendant. J.T. MAGEN & CO., Fourth-Party Plaintiff, v. POMALEE ELECTRIC CO., INC., et al., Fourth-Party Defendants. J.T. MAGEN & CO., Fifth-Party Plaintiff, v. DONNELLY MECHANICAL CORP., Fifth-Party Defendant. APPLE COMPUTER, INC., Sixth-Party Plaintiff, v. COMPEL AND USIS, Sixth-Party Defendant.

Supreme Court, New York County.

Decided May 22, 2009.

Attorney(s) appearing for the Case

Fischetti & Pesce, LLP, Garden City (Frank V. Pesce of counsel), for Apple Computer, Inc., defendant and third- and sixth-party plaintiff.

Law Office of James J. Toomey, New York City (Patrick J. McConnell of counsel), for J.T. Magen & Co., defendant and third-party defendant and fourth- and fifth-party plaintiff.

Hawkins Feretic & Daly LLC, New York City (John E. Hannum of counsel), for Pomalee Electric Co., Inc. and another, fourth-party defendants. Mintzer Sarowitz Zeris Ledva & Meyers LLP, New York City (Henry J. Achiron of counsel), for Donnelly Mechanical Corp., fifth-party defendant. Cohen Kuhn & Associates, New York City (Gary P. Asher of counsel), for Compel And Usis, sixth-party defendant. David Horowitz, P.C., New York City (Steven J. Horowitz of counsel), for plaintiff.

OPINION OF THE COURT

EDWARD H. LEHNER, J.

On the various motions by defendants for summary judgment dismissing the action as against them, I am faced with determining a constantly recurring issue in cases under the Labor Law as to whether the work plaintiff was performing at the time of his injury was "routine maintenance" and thus not covered by Labor Law § 240 (1), or a "repair," which is one of the enumerated activities set forth in the section,...

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