COVEY v. IROQUOIS GAS TRANSMISSION SYSTEM (1997)

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

Plaintiff commenced this action pursuant to Labor Law § 240(1) to recover damages for personal injuries he sustained when he fell approximately 20 feet from a backhoe into a trench during the course of his employment with a contractor engaged by defendants to construct a pipeline.   At the time of the accident, plaintiff was attempting to replace hydraulic fluid in the backhoe, which was adjacent to the pipeline trench.   The Appellate Division correctly determined that plaintiff was engaged in an  activity protected under Labor Law § 240(1), inasmuch as the work performed by plaintiff was part of the construction of the pipeline (see, Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117).   In addition, under the circumstances of this case, plaintiff's fall from the backhoe into the 15-foot deep excavation after attempting to steady himself by grabbing an improperly secured handrail was the type of elevation-related risk for which Labor Law § 240(1) provides protection (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 560-562, 606 N.Y.S.2d 127, 626 N.E.2d 912).

Order affirmed, etc.

MEMORANDUM.

KAYE, C.J., and BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY, JJ., concur in MEMORANDUM. TITONE, J., taking no part.