Opinion
CA 01-02162
February 1, 2002.
Appeal from an order of Supreme Court, Chautauqua County (Gerace, J.), entered July 24, 2001, which denied the motion of defendant National Fuel Gas Corporation for summary judgment.
COHEN LOMBARDO, P.C., BUFFALO (NEIL R. SHERWOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
CELLINO BARNES, P.C., BUFFALO (JOHN C. MURRETT, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant National Fuel Gas Corporation is dismissed.
Memorandum:
Plaintiff was struck by a vehicle while removing trees and brush for his employer at the request of National Fuel Gas Corporation (defendant). The work was intended to enable defendant's employees to access and traverse a right-of-way over which defendant transports gas by pipeline. Supreme Court erred in denying the motion of defendant seeking summary judgment dismissing the complaint, which as against defendant alleges a violation of Labor Law § 241 (6). The work performed by plaintiff at the time of his injury constituted "`routine maintenance in a non-construction, non-renovation context'" ( Burr v. Short, 285 A.D.2d 576; see, Havens v. Witte, 214 A.D.2d 958, 959). He thus was not engaged in an activity protected under Labor Law § 241 (6) ( see, Hammond v. Alekna, 224 A.D.2d 1039; Warsaw v. Eastern Rock Prods., 193 A.D.2d 1115; see also, Walton v. Devi Corp., 215 A.D.2d 60, 63, lv denied 87 N.Y.2d 809; Dumoulin v. Oval Wood Dish Corp., 211 A.D.2d 883).