          SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

537
CA 12-01545
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


SOPHIA MELSKI, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF PATRICK
MELSKI, DECEASED, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

FITZPATRICK & WELLER, INC.,
DEFENDANT-RESPONDENT.
---------------------------------------
FITZPATRICK & WELLER, INC., THIRD-PARTY
PLAINTIFF,

                    V

NICHOLSON & HALL CORP.,
THIRD-PARTY DEFENDANT-RESPONDENT.


COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (CHARLES H. COBB OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

STOCKTON, BARKER & MEAD, LLP, TROY (ROBERT S. STOCKTON OF COUNSEL), FOR
DEFENDANT-RESPONDENT.

GOLDBERG SEGALLA LLP, BUFFALO (BRIAN R. BIGGIE OF COUNSEL), FOR
THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Kevin M.
Dillon, J.), entered May 25, 2012. The order granted the motions of
defendant and third-party defendant for summary judgment dismissing the
amended complaint.

     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: Plaintiff’s decedent fell from a ladder and was injured
while performing work on a boiler at a hardwood lumber plant operated by
defendant. Plaintiff commenced this action seeking damages for
violations of Labor Law §§ 200, 240 (1) and 241 (6), as well as for
common-law negligence, and Supreme Court granted the motions of defendant
and third-party defendant for summary judgment dismissing the amended
complaint. Plaintiff contends on appeal that the court erred in granting
those parts of the motions with respect to the Labor Law §§ 240 (1) and
241 (6) claims inasmuch as decedent was engaged in a protected activity
at the time he was injured. We reject that contention. With respect to
                                 -2-                           537
                                                         CA 12-01545

section 240 (1), defendant and third-party defendant met their initial
burden of establishing that decedent was not performing one of the
protected activities enumerated in the statute but, rather, was involved
in routine maintenance in a non-construction, non-renovation context (see
Smith v Shell Oil Co., 85 NY2d 1000, 1002; Noah v IBC Acquisition Corp.,
262 AD2d 1037, 1037, lv denied 93 NY2d 1042). Specifically, defendant
and third-party defendant established that decedent’s work involved
replacing components that required replacement in the course of normal
wear and tear, and thus that work did not involve repairing or any of the
other activities enumerated in section 240 (1) (see Esposito v New York
City Indus. Dev. Agency, 1 NY3d 526, 528). With respect to section 241
(6), defendant and third-party defendant met their burden of establishing
that decedent did not perform his work in the context of construction,
demolition or excavation (see Nagel v D & R Realty Corp., 99 NY2d 98,
102-103). Plaintiff failed to raise a triable issue of fact with respect
to either statute (see generally Zuckerman v City of New York, 49 NY2d
557, 562).




Entered:   June 7, 2013                        Frances E. Cafarell
                                               Clerk of the Court
