VILLALTA v. Verizon New York Inc. et al., Defendants–Respondents. (2021)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered December 23, 2020, which denied plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim as against the Verizon defendants (Verizon), unanimously modified, on the law, upon a search of the record, to grant summary judgment to Verizon dismissing the claim as against it, and otherwise affirmed, without costs.

Plaintiff, a cable-service repairman employed by a nonparty cable company, seeks to recover damages for injuries he allegedly sustained in a fall from the ladder he had propped up against a telephone pole owned by Verizon while he was inspecting storm-damaged cable equipment supported by the pole.

While the telephone pole is a structure withing the meaning of Labor Law § 240(1), and plaintiff's work replacing the damaged cable equipment and reconfiguring its support system using J-hooks and anchors affixed to the utility pole amounted to repairs and/or an alteration to the equipment, Verizon is entitled to summary dismissal of the complaint as against it because there is no evidence that it contracted for, directed or controlled, or benefitted from the work plaintiff was performing for the cable company at the time he was injured or that it was acting in the capacity of an accountable “owner” within the meaning of the statute (see Sarigul v. New York Tel. Co., 4 A.D.3d 168, 772 N.Y.S.2d 653 [1st Dept. 2004], lv denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665 [2004];  Fuller v. Niagara Mohawk Power Corp., 213 A.D.2d 986, 625 N.Y.S.2d 108 [4th Dept. 1995], lv denied 86 N.Y.2d 708, 634 N.Y.S.2d 442, 658 N.E.2d 220 [1995];  see also Lacey v. Long Is. Light. Co., 293 A.D.2d 718, 741 N.Y.S.2d 558 [2d Dept. 2002]).  Further, there is no evidence to support an inference that Verizon had a right to insist that plaintiff followed proper safety practices in the performance of his work (see Sarigul, 4 A.D.3d at 170, 772 N.Y.S.2d 653).