Sarigul v. New York Telephone Co.

*169Order, Supreme Court, New York County (Louis York, J.), entered on or about August 26, 2002, which, insofar as appealed from, granted the motion of defendant New York Telephone Company (NYTel) for summary judgment dismissing the complaint and the third-, fourth- and fifth-party complaints, affirmed, without costs.

Plaintiff Cavit Sarigul, an employee of Amplified Wiring Systems, a cable installation company, sustained personal injuries while stripping the insulation from a preexisting cable wire owned by Cablevision Systems Corporation. At the time of the occurrence, plaintiff was positioned on a 28-foot ladder anchored to a NYTel telephone line which, in turn, was attached to a NYTel telephone pole.

NYTel subsequently moved for summary judgment dismissing the complaint against it. Although this motion was made beyond the 60-day deadline prescribed by the LAS court’s rules, the IAS court granted NYTel’s motion and, upon a search of the record, dismissed the remaining third-, fourth- and fifth-party complaints, finding, inter alia, that NYTel was not the owner of the subject cable line being altered by plaintiff at the time of the incident and did not otherwise act in the capacity of the owner within the ambit of Labor Law § 240 (1).

In relevant part, section 240 (1) provides that, in the course of altering a structure, all contractors and owners and their agents who contract for—but do not direct or control—the work shall furnish safety equipment to their employees to protect them against the dangers incident to the alteration. We agree with the IAS court that the subject telephone pole and its wiring were a “structure” under the statute (see Joblon v Solow, 91 NY2d 457 [1998]; Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943 [1991]; Garrant v New York Tel. Co., 179 AD2d 960 [1992]), and that stripping the insulation from the subject cable wire was an “alteration” under the statute (see Weininger v Hagedorn & Co., 91 NY2d 958 [1998]).

The IAS court also properly determined that NYTel neither was an “owner” of the subject cable wire that plaintiff was altering at the time of the incident nor otherwise acted in the capacity of an owner (see Lacey v Long Is. Light. Co., 293 AD2d 718 [2002]; Ray v Niagara Mohawk Power Corp., 256 AD2d 1070 [1998]; Fuller v Niagara Mohawk Power Corp., 213 AD2d *170986 [1995], lv denied 86 NY2d 708 [1995]). It has been held that the key in ascertaining whether a nontitleholder party is an “owner” under the statute is the “ ‘right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control’ ” (Lacey v Long Is. Light. Co., 293 AD2d at 719, quoting Copertino v Ward, 100 AD2d 565, 567 [1984]). Applying this rationale to the instant matter, we find that NYTel was not the “owner” of the cable wire that was being altered by plaintiff at the time of the incident.

While it would appear that Coleman v City of New York (91 NY2d 821 [1997]) and Gordon v Eastern Ry. Supp. (82 NY2d 555 [1993]) cited by the dissent, are not consistent with Lacey, Ray and Fuller, the Court of Appeals, two years after Gordon was decided, denied review in Fuller (86 NY2d 708 [1995]), a case in which the facts are strikingly similar to the instant matter. There, the defendant owned a utility pole as did the defendant herein. The plaintiff had placed his ladder against defendant’s telephone line as he altered a cable wire. He was injured when the ladder slipped and he fell. The Fourth Department determined that the defendant was not the “owner” of the cable line being repaired and did not otherwise act in the capacity of an owner.

Lacey, Ray and Fuller are also consistent with this Court’s rule that an apartment building owner cannot be held liable to a cable repair person who is called by a tenant when the owner never “hired, or even knew of the retention of, the cable television contractor in whose employment plaintiff was at the time of the accident giving rise to the within action” (Ceballos v Kaufman, 249 AD2d 40 [1998]; see also Abbatiello v Lancaster Studio Assoc., 307 AD2d 788 [2003]; Brown v Christopher St. Owners Corp., 211 AD2d 441, 442 [1995], affd 87 NY2d 938 [1996]). Inasmuch as NYTel did not hire or even know of the retention of Amplified, for whom plaintiff worked at the time of the occurrence, the section 240 (1) claim against NYTel was properly dismissed.

Similarly, the section 241 (6) claim against NYTel was also properly dismissed by the IAS court since plaintiff’s work in altering the cable wire was not part of a “construction, demolition or excavation” of a structure (see Nagel v D & R Realty Corp., 99 NY2d 98 [2002]).

Lastly, the IAS court properly determined that NYTel had demonstrated the requisite “good cause” for the de minimis delay in making its summary judgment motion pursuant to CPLR 3212 (a) (see Fainberg v Dalton Kent Sec. Group, 268 *171AD2d 247, 248 [2000]; cf. Carvajal v M. Madison LLC, 297 AD2d 550 [2002]). In the instant matter, NYTel was prepared to make a timely summary judgment motion under the IAS court’s prescribed discovery timetable, but delayed making it upon the express request of a court-appointed coordinator/mediator. Concur—Nardelli, J.E, Sullivan, Rosenberger and Lerner, JJ.