Acosta v. Popular , 762 N.Y.S.2d 64 ( 2003 )

Ellerin, J.

(dissenting in part). I would affirm the motion court’s disposition of plaintiffs Labor Law § 240 (1) and § 241 (6) claims as well as his section 200 claim. To bolt a key box into place, plaintiff was going to drill six holes in the concrete wall of the vault room and embed in each hole a core rod four to five inches long. I find that this work would have caused a significant physical change to the building (see Panek v County of Albany, 99 NY2d 452, 458 [2003] [removing two air handlers affixed with bolts to an I-beam on a ceiling of an air traffic control tower caused a significant physical change to the tower]) and thus that the motion court correctly found that plaintiff was engaged in the alteration of a structure and not in routine maintenance (see Joblon v Solow, 91 NY2d 457 [1998]).

Tom, J.P., and Marlow, J., concur with Sullivan, J.; Ellerin and Gonzalez, JJ., dissent in part in a separate opinion by Ellerin, J.

Order, Supreme Court, Bronx County, entered on or about April 3, 2002, modified, on the law, to grant defendants’ motion to dismiss the Labor Law § 240 (1) and § 241 (6) claims and, except as thus modified, affirmed, without costs or disbursements.