Under Labor Law §240(1) a person may prevail in litigation if injured “during the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240[1]; see Moreira v Ponzo, 131 AD3d 1025, 1026; Enos v Werlatone, Inc., 68 AD3d 713, 714). In determining whether a particular activity constitutes “repairing,” courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1) (see Esposito v New York City Indus. Dev. Agency, 1 NY3d 526, 528; Joblon v Solow, 91 NY2d 457, 465; Smith v Shell Oil Co., 85 NY2d 1000, 1002). Generally, courts have held that work constitutes routine maintenance where the work involves “replacing components that require replacement in the course of normal wear and tear” (Esposito v NY City Indus. Dev. Agency, 1 NY3d at 528; see Mammone v T.G. Nickel & Assoc. LLC, 144 AD3d 761, 761).”

Ferrigno v Jaghab, Jaghab & Jaghab, P.C.  2017 NY Slip Op 05709  Decided on July 19, 2017 Appellate Division, Second Department is a legal malpractice case based upon the failure timely to commence an action under the Labor Law.

“Here, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the plaintiff was engaged in “repair[s]” at the time of his accident or whether he was engaged in routine maintenance. On the one hand, the defendants submitted evidence establishing that the plaintiff was changing a ballast in a light fixture at the time of his accident, a job which constitutes routine maintenance since the replacement of this component occurs in the course of normal wear and tear (see Konaz v St. John’s Preparatory Sch., 105 AD3d 912, 913; Monaghan v 540 Inv. Land Co. LLC, 66 AD3d 605, 605; Deoki v Abner Props. Co., 48 AD3d 510Sanacore v Solla, 284 AD2d 321). However, the defendants also submitted the plaintiff’s deposition testimony in support of their motion. The plaintiff testified at his deposition that he was in the midst of disconnecting, splicing, cleaning, and assessing the internal electrical wires in order to fix a light fixture when he fell from the ladder. Thus, the plaintiff’s deposition testimony demonstrated the existence of a triable issue of fact as to whether the plaintiff was “repairing” the light fixture at the time of his accident (see Nowakowski v Douglas Elliman Realty, LLC, 78 AD3d 1033, 1034; Eisenstein v Board of Mgrs. of Oaks at La Tourette Condominium Sections I-IV, 43 AD3d 987, 988; Fitzpatrick v State of New York, 25 AD3d 755, 757; Piccione v 1165 Park Ave., 258 AD2d 357, [*3]358). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the legal malpractice cause of action, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The defendants are correct, however, that the Supreme Court erred in denying those branches of their motion, which were unopposed, for summary judgment dismissing the second and third causes of action as duplicative of the legal malpractice cause of action (see Mecca v Shang, 258 AD2d 569, 570; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35; CVC Capital Corp. v Weil, Gotshal, Manges, 192 AD2d 324, 324-325; cf. Rupolo v Fish, 87 AD3d 684, 685-686; Reidy v Martin, 77 AD3d 903). Accordingly, the court should have awarded summary judgment dismissing the second and third causes of action in the second amended complaint.”