Benfanti v. Tri-Main Development, L.P.

231 A.D.2d 855, 647 N.Y.S.2d 616, 1996 N.Y. App. Div. LEXIS 14232

Opinion

Order unanimously reversed on the law without costs, motion denied, complaint reinstated and cross motion granted. Memorandum: Supreme Court erred in granting defendant’s summary judgment motion and in denying plaintiffs cross motion for summary judgment on liability under Labor Law § 240 (1). Plaintiff Charles P. Benfanti, an electrician, fell approximately eight feet from a ladder to the ground while attempting to loosen a drain pipe. We conclude that removal of a portion of the drain pipe leading to the building’s main sewer line for the purpose of unclogging and repairing it constitutes the repair of a structure within the meaning of Labor Law § 240 (1), rather than routine maintenance (see, Holka v Mt. Mercy Academy, 221 AD2d 949, lv dismissed 87 NY2d 1055; Fuller v Niagara Mohawk Power Corp., 213 AD2d 986, lv denied 86 NY2d 708; cf., Smith v Shell Oil Co., 85 NY2d 1000; Rennoldson v Volpe Realty Corp., 216 AD2d 912, lv dismissed 86 NY2d 837). (Appeal from Order of Supreme Court, Erie County, Whelan, J.— Summary Judgment.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.