Dillon v. State

Appeal from an order of the Court of Claims (Lyons, J.), entered February 2, 1993, which, inter alia, upon reargument, adhered to its prior decision denying claimant’s application pursuant to Court of Claims Act § 10 (6) for permission to file a late notice of claim to the extent that it alleged a violation of Labor Law § 240 (1).

By this litigation, claimant seeks to recover for injuries sustained when molten thermoplastic splashed into his face as he was preparing to paint edge lines on a newly resurfaced State highway. When this matter was previously before us, we affirmed the Court of Claims’ order denying claimant’s application to file a late notice of claim to the extent that it alleged violations of Labor Law § 240 (1) and § 241 (6) upon the ground that a highway at grade cannot constitute a "building” within the purview of Labor Law § 241 (6) or a "building or structure” within Labor Law § 240 (1) (167 AD2d 574). Based upon the subsequent decision in Mosher v State of New York (80 NY2d 286), in which the Court of Appeals concluded that allegations with respect to injuries sustained on a highway repaving project fell within the purview of Labor Law § 241 (6), claimant moved for reargument. The Court of Claims granted the application with regard to the cause of action *794predicated upon Labor Law § 241 (6), but denied it with respect to the claim under Labor Law § 240 (1). Claimant appeals and we affirm. As correctly determined by the Court of Claims, the decision in Mosher v State of New York (supra) is limited to and, indeed, is premised upon the unique history of Labor Law § 241 (6). Nothing in that decision casts doubt upon our determination that a highway may not constitute a "building or structure” within the purview of Labor Law § 240 (1) (see, Lewis-Moors v Contel of N. Y., 78 NY2d 942; Siragusa v State of New York, 117 AD2d 986, lv denied 68 NY2d 602).

Mikoll, J. P., Crew III, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, without costs.