Opinion
November 13, 2000.
Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Reargument.
PRESENT: PINE, J. P., WISNER, HURLBUTT, SCUDDER AND BALIO, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted defendants' cross motion for summary judgment dismissing the Labor Law § 240 (1) cause of action. Plaintiff, a cable television maintenance technician, was injured when he fell from a ladder that had been positioned against a utility pole owned jointly by defendants. Plaintiff had been dispatched to repair a cable line. At the time of the accident, he was connecting the cable line to the utility pole when a truck struck the cable line that was dangling across the roadway, pulling plaintiff backwards off the ladder. Although the utility pole is a structure within the meaning of section 240 (1) ( see, Lewis-Moors v. Contel of N. Y., 78 N.Y.2d 942, 943), defendants are not liable under that section "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)" ( Fuller v. Niagara Mohawk Power Corp., 213 A.D.2d 986, 987, lv denied 86 N.Y.2d 708; see, Ray v. Niagara Mohawk Power Corp., 256 A.D.2d 1070).