| Davis v Wind-Sun Constr., Inc. |
| 2010 NY Slip Op 01173 [70 AD3d 1383] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Kenneth Davis et al., Appellants, v Wind-Sun Construction, Inc.,Respondent. |
—[*1] Goldberg Segalla LLP, Buffalo (Paul McCormick of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredMay 6, 2009 in a personal injury action. The order, among other things, granted defendant'scross motion for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by Kenneth Davis (plaintiff) while he was attempting tomove the fabricated steel components of a pedestrian bridge into his employer's facility onAkron Road in Lockport. Defendant was the general contractor on the project to construct thepedestrian bridge at Lyndon Road in Fairport, and entered into a subcontract with plaintiff'semployer to fabricate the steel bridge components.
Supreme Court properly granted that part of defendant's cross motion for summary judgmentdismissing the Labor Law § 241 (6) cause of action. That statute applies to "construction,excavation and demolition work," and plaintiff was not engaged in such work when he wasinjured (id.). Indeed, plaintiff's accident did not occur at the construction site but, rather,it occurred while he was engaged in the fabrication of steel bridge components at his employer'sfacility. Thus, he was not engaged in an activity protected under Labor Law § 241 (6)(see Solly v Tam Ceramics, 258 AD2d 914 [1999]; Safe v Bethlehem SteelCorp., 258 AD2d 933 [1999], lv denied 93 NY2d 818 [1999]). Furthermore, plaintiffwas not engaged in a protected activity under Labor Law § 240 (1) at the time of theaccident, and thus the court properly denied plaintiffs' motion for leave to amend the complaintto include a cause of action for the violation of that statute (see generally Solly, 258AD2d 914 [1999]). Present—Smith, J.P., Carni, Pine and Gorski, JJ.