Mamo v. Rochester Gas & Electric Corp.
Opinion of the Court
—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly granted plaintiffs motion for partial summary judgment under Labor Law § 240 (1), and properly denied that part of defendant’s motion for summary judgment seeking to dismiss that cause of action. A utility pole and its attached hardware, cable and support systems constitute a structure covered by Labor Law § 240 (1) (see, Lewis-Moors v Contel of N. Y, 78 NY2d 942, 943; Salzler v New York Tel. Co., 192 AD2d 1104; Dedario v New York Tel. Co., 162 AD2d 1001, 1002). That section has been construed to apply to the removal of nearby trees as part of otherwise protected activities involving a "structure” (see, Lombardi v Stout, 80 NY2d 290, 296; Mosher v St. Joseph’s Villa, 184 AD2d 1000, 1002; Nagel v Metzger, 103 AD2d 1, 9-10).
The court also erred in denying that part of defendant’s motion for summary judgment seeking to dismiss plaintiff’s cause of action under Labor Law § 200. Although defendant’s inspectors visited the job site to observe whether work was being performed within safety standards and reserved the right to stop work in the event of an unsafe procedure, the record contains no proof that defendant was actually supervising the tree-trimming operations on the day in question. Under Comes v New York State Elec. & Gas Corp. (82 NY2d 876) (decided after the court’s decision), actual or constructive notice of plaintiff’s allegedly defective method of climbing trees is not, by itself, sufficient to establish liability under section 200. (Appeal from Order of Supreme Court, Monroe County, Cornelius, J.—Summary Judgment.) Present—Den-man, P. J., Pine, Lawton, Wesley and Davis, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.