GIRTY v. NIAGARA MOHAWK POWER CORPORATION (1999)

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[1] ), 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[1];  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 protection of Labor Law § 240(1) even though he did not fall to the ground (see, Brown v. Niagara Mohawk Power Corp., 188 A.D.2d 1014, 591 N.Y.S.2d 908) and his injuries did not result solely from the impact of his fall (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912).   Finally, we conclude that plaintiff established as a matter of law that the violation of Labor Law § 240(1) was a proximate cause of his injuries and that “the intervening act of [Stephan] did not sever that causal connection or interrupt that link” (Boshart v. City of Buffalo, 185 A.D.2d 706, 707, 586 N.Y.S.2d 844;  see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010).

We therefore modify the order by granting 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 and by denying that part of plaintiff's motion seeking partial summary judgment on liability pursuant to Labor Law § 240(1) against those defendants.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: