Bonghi v. New York Telephone Co.

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendants’ cross motion for summary judgment dismissing the Labor Law § 240 (1) cause of action. Plaintiff, a cable television maintenance technician, was injured when he fell from a ladder that had been positioned against a utility pole owned jointly by defendants. Plaintiff had been dispatched to repair a cable line. At the time of the accident, he was connecting the cable line to the utility pole when a truck struck the cable line that was dangling across the roadway, pulling plaintiff backwards off the ladder. Although the utility pole is a structure within the meaning of section 240 (1) (see, Lewis-Moors v Contel of N. Y., 78 NY2d 942, 943), defendants are not liable under that section “because they are not ‘owners’ of the television cable line being repaired or altered by plaintiff at the time of the accident (see, Labor Law § 240 [1]), and did not otherwise act in the capacity of an owner (see, Mangiameli v Galante, 171 AD2d 162, 164)” (Fuller v Niagara Mohawk Power Corp., 213 AD2d 986, 987, lv denied 86 NY2d 708; see, Ray v Niagara Mohawk Power Corp., 256 AD2d 1070). (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Reargument.) Present — Pine, J. P., Wisner, Hurlbutt, Scudder and Balio, JJ.