Girty v. Niagara Mohawk Power Corp.

• Decision Date: 18 June 1999
• Parties: Mark GIRTY, Plaintiff-Respondent, v. NIAGARA MOHAWK POWER CORPORATION, Paragon Cable T.V., Alltel New York, Inc., Thayer Construction Company, Defendants-Appellants, et al., Defendants. Alltel New York, Inc., Third-Party Plaintiff-Respondent, v. Kenya Corporation t/a Channel Communications, Third-party Defendant-Appellant. Terrance G. Stephan and Nason's Delivery, Third-Party Plaintiffs-Respondents, v. Kenya Corporation t/a Channel Communications, Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 822

691 N.Y.S.2d 822

Mark GIRTY, Plaintiff-Respondent, v. NIAGARA MOHAWK POWER CORPORATION, Paragon Cable T.V., Alltel New York, Inc., Thayer Construction Company, Defendants-Appellants, et al., Defendants.

Alltel New York, Inc., Third-Party Plaintiff-Respondent, v. Kenya Corporation t/a Channel Communications, Third-party Defendant-Appellant.

Terrance G. Stephan and Nason's Delivery, Third-Party Plaintiffs-Respondents, v. Kenya Corporation t/a Channel Communications, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 18, 1999.

John A. Ziegler, for defendants-appellants and third-party defendant-appellant.

Brian Chapin York, Jamestown, for plaintiff-respondent.

No brief or argument for third-party plaintiffs-respondents Terrance G. Stephan and Nason's Delivery.

PRESENT: GREEN, J.P., LAWTON, WISNER, HURLBUTT and CALLAHAN, JJ.

MEMORANDUM:

Plaintiff, a lineman employed by third-party defendant, commenced this action to recover damages for injuries he sustained while installing cable television lines. Defendant Paragon Cable T.V. (Paragon), the owner of the lines, hired third-party defendant to install the lines. At the time of the accident, plaintiff was working approximately 15 feet above the ground on a utility pole jointly owned by defendant Niagara Mohawk Power Corporation (Niagara Mohawk) and defendant-third-party plaintiff Alltel New York, Inc. (Alltel). Paragon was permitted to use the utility pole pursuant to license agreements with Niagara Mohawk and Alltel's predecessor in interest. Plaintiff was secured to the pole by means of gaffs that he wore around his legs and inserted into the pole. He also wore a safety belt positioned above one of the cable lines. The accident occurred when a truck owned by defendant-third-party plaintiff Nason's Delivery and driven by defendant-third-party plaintiff Terrance G. Stephan struck a steel support wire, causing the pole on which plaintiff was working to shake violently. Plaintiff's gaffs were jarred out of the pole and plaintiff fell a foot or more until his safety belt caught on the line. As plaintiff dangled from the pole, he was slammed several times into the shaking utility pole.

Supreme Court erred in denying those parts of the motion of Alltel and the cross motion of Niagara Mohawk seeking summary judgment dismissing that part of the second cause of action alleging a violation of Labor Law § 240(1) by those defendants. The court also erred in granting that part of plaintiff's motion seeking partial summary judgment on liability pursuant to Labor Law § 240(1) against those defendants. Although the 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), Niagara Mohawk and Alltel are not liable under Labor Law § 240(1) "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 ), 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)" (Fuller v. Niagara Mohawk Power Corp., 213 A.D.2d 986, 986-987, 625 N.Y.S.2d 108, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 442, 658 N.E.2d 220; see, Ray v. Niagara Mohawk Power Corp., 256 A.D.2d 1070, 682 N.Y.S.2d 758).

The court properly granted that part of plaintiff's motion seeking partial summary judgment on liability pursuant to Labor Law § 240(1) against Paragon. Paragon is an "owner" within the meaning of Labor Law § 240(1) (see, Wilcox v. Paragon Cable T.V., 241 A.D.2d 914, 661 N.Y.S.2d 397) and the television cable lines plaintiff was installing constitute a "structure" under the statute (see, Fuller v. Niagara Mohawk Power Corp., supra; Garrant v. New York Tel. Co., 179 A.D.2d 960, 961, 578 N.Y.S.2d 727). Plaintiff was exposed to the "special hazards" of working at an elevated worksite that called for the use of protective devices of the type listed in section 240(1) (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932; see, Felker v. Corning Inc., 90 N.Y.2d 219, 224, 660 N.Y.S.2d 349, 682 N.E.2d 950), and his injuries were the proximate result of the failure of the devices he was using "to give proper protection" (Labor Law § 240; see, Ray v. Niagara Mohawk Power Corp., supra; Atwell v. Mountain Ltd., 184 A.D.2d 1065, 584 N.Y.S.2d 255). Further, plaintiff is entitled to the...