Fuller v. Niagara Mohawk Power Corp.
| Decision Date | 17 March 1995 |
| Citation | 625 N.Y.S.2d 108,213 A.D.2d 986 |
| Parties | Robert M. FULLER and Frances A. Fuller, Respondents, v. NIAGARA MOHAWK POWER CORPORATION and Oneida County Rural Telephone Co., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Hancock and Estabrook by Alan Pierce, Syracuse, for appellants.
Julian and Pertz, P.C. by Richard Pertz, Utica, for respondents.
Before GREEN, J.P., and PINE, CALLAHAN, DOERR and DAVIS, JJ.
Robert M. Fuller (plaintiff), a cable television repairman employed by third-party defendant, Harron Communications Corp. (Harron), was injured when the ladder he was climbing slipped, causing him to fall. Plaintiff was investigating a customer's complaint about "snowy reception". The cable line was attached to a utility pole owned jointly by defendants, Niagara Mohawk Power Corporation (Niagara Mohawk) and Oneida County Rural Telephone Co. (OCRT). Because the connection to be checked was at a distance from the pole and the ladder was too short to reach Harron's cable line, plaintiff placed the ladder against the OCRT line located directly below the cable line.
Plaintiffs commenced this action against Niagara Mohawk and OCRT alleging a cause of action under Labor Law § 240(1). Plaintiffs' motion for partial summary judgment with respect to liability under Labor Law § 240(1) and defendants' cross motion to dismiss the amended complaint were summarily denied by Supreme Court.
The court erred in denying defendants' cross motion. A utility pole is a "structure" within the meaning of the statute (see, Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434) and the lines attached thereto may also be considered a structure (see, Garrant v. New York Tel. Co., 179 A.D.2d 960, 578 N.Y.S.2d 727). Also, we conclude that the work being performed by plaintiff constituted a repair or alteration of the structure within the meaning of the statute (see, Dedario v. New York Tel. Co., 162 A.D.2d 1001, 557 N.Y.S.2d 794). Defendants are not liable under Labor Law § 240(1), however, because they are not "owners" of the television cable line being repaired or altered by plaintiff at the time of the accident (see, Labor Law § 240[1], and did not otherwise act in the capacity of an owner (see, Mangiameli v. Galante, 171 A.D.2d 162, 164, 574 N.Y.S.2d 842).
Order unanimously modified on the law and as modified affirmed without costs.
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