Bieber v. A & B Wholesale , 737 N.Y.S.2d 902 ( 2002 )

—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.