Opinion
636 CA 02-00164
July 3, 2002.
Appeals from an order of Supreme Court, Onondaga County (Murphy, J.), entered October 29, 2001, which, inter alia, granted that part of plaintiff's motion seeking summary judgment dismissing the fifth affirmative defense of defendant Petr-All Petroleum Corporation.
HARTER, SECREST EMERY LLP, ROCHESTER (JOHN C. HERBERT OF COUNSEL), FOR DEFENDANT-APPELLANT MOBIL OIL CORPORATION.
SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (GABRIELLE MARDANY TUCCI OF COUNSEL), FOR DEFENDANT-APPELLANT PETR-ALL PETROLEUM CORPORATION.
JAMES B. FLECKENSTEIN, SYRACUSE, FOR PLAINTIFF-RESPONDENT.
Before: PIGOTT, JR., P.J., HAYES, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Plaintiff commenced these consolidated actions to recover damages for injuries that he sustained as the result of an electric shock experienced in the course of his work. The work involved replacement of defective bulbs, ballasts and sockets in a freestanding, illuminated "Mobil" sign on the premises of a gasoline station of which defendants were the lessor and lessee, respectively. Supreme Court properly granted that part of plaintiff's motion seeking summary judgment dismissing the fifth affirmative defense of defendant Petr-All Petroleum Corporation alleging the failure to state a cause of action under the Labor Law, and properly denied those parts of defendants' motions seeking summary judgment dismissing the Labor Law § 241(6) cause of action. Contrary to the contention of defendants, they failed to establish as a matter of law that plaintiff was injured while performing "routine maintenance in a non-construction, non-renovation context" ( Bieber v. A B Wholesale, 291 A.D.2d 936, 936 [internal quotation marks omitted]; see generally Scott v. Scott's Landing, 277 A.D.2d 918, 919, lv denied 96 N.Y.2d 705) and thus failed to meet their burden of establishing as a matter of law that plaintiff was not engaged in an activity protected under Labor Law § 241(6) ( see Ruiz v. 8600 Roll Rd., 190 A.D.2d 1030, 1031; see generally Joblon v. Solow, 91 N.Y.2d 457, 465-466; Jock v. Fien, 80 N.Y.2d 965, 968; 12 NYCRR 23-1.4 [b] [13]).