Bieber v. A & B Wholesale

Appellate Division of the Supreme Court of New York

Bieber v. A & B Wholesale

291 A.D.2d 936, 737 N.Y.S.2d 902, 2002 N.Y. App. Div. LEXIS 1155

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 2002

StatusPublished

Cited by2 cases

This text of 291 A.D.2d 936 (Bieber v. A & B Wholesale) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bieber v. A & B Wholesale, 291 A.D.2d 936, 737 N.Y.S.2d 902, 2002 N.Y. App. Div. LEXIS 1155 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from an order of Supreme Court, Chautauqua County (Gerace, J.), entered July 24, 2001, which denied the motion of defendant National Fuel Gas Corporation for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant National Fuel Gas Corporation is dismissed.

Memorandum: Plaintiff was struck by a vehicle while removing trees and brush for his employer at the request of National Fuel Gas Corporation (defendant). The work was intended to enable defendant’s employees to access and traverse a right-of-way over which defendant transports gas by pipeline. Supreme Court erred in denying the motion of defendant seeking summary judgment dismissing the complaint, which as against defendant alleges a violation of Labor Law § 241 (6). The work performed by plaintiff at the time of his injury constituted “ ‘routine maintenance in a non-construction, non-renovation context’ ” (Burr v Short, 285 AD2d 576, 576; see, Havens v Witte, 214 AD2d 958, 959). He thus was not engaged in an activity protected under Labor Law § 241 (6) (see, Hammond v Alekna, 224 AD2d 1039; Warsaw v Eastern Rock Prods., 193 AD2d 1115; see also, Walton v Devi Corp., 215 AD2d 60, 63, lv denied 87 NY2d 809; Dumoulin v Oval Wood Dish Corp., 211 AD2d 883). Present — Hayes, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.

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—Appeal from an order of Supreme Court, Chautauqua County (Gerace, J.), entered July 24, 2001, which denied the motion of defendant National Fuel Gas Corporation for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant National Fuel Gas Corporation is dismissed.

Memorandum: Plaintiff was struck by a vehicle while removing trees and brush for his employer at the request of National Fuel Gas Corporation (defendant). The work was intended to enable defendant’s employees to access and traverse a right-of-way over which defendant transports gas by pipeline. Supreme Court erred in denying the motion of defendant seeking summary judgment dismissing the complaint, which as against defendant alleges a violation of Labor Law § 241 (6). The work performed by plaintiff at the time of his injury constituted “ ‘routine maintenance in a non-construction, non-renovation context’ ” (Burr v Short, 285 AD2d 576, 576; see, Havens v Witte, 214 AD2d 958, 959). He thus was not engaged in an activity protected under Labor Law § 241 (6) (see, Hammond v Alekna, 224 AD2d 1039; Warsaw v Eastern Rock Prods., 193 AD2d 1115; see also, Walton v Devi Corp., 215 AD2d 60, 63, lv denied 87 NY2d 809; Dumoulin v Oval Wood Dish Corp., 211 AD2d 883). Present — Hayes, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.

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291 A.D.2d 936, 737 N.Y.S.2d 902, 2002 N.Y. App. Div. LEXIS 1155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bieber-v-a-b-wholesale-nyappdiv-2002.

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