Phillips v.Eastman Kodak Co.

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiff’s motion for partial summary judgment on the Labor Law § 240 (1) cause of action. While working on construction of a sewer tunnel 80 feet below the surface of defendant’s parking lot, plaintiff was struck by a wooden board that fell from a work site in a shaft approximately 60 feet above him. Defendant, as the grantor of an easement for construction of that tunnel, remained the fee owner, and thus, was an "owner” within the meaning of Labor Law § 240 (1) (see, Gordon v Eastern Ry. Supply, 82 NY2d 555 , 560; Celestine v City of New York, 86 AD2d 592 , 593, affd 59 NY2d 938 ; Kerr v Rochester Gas & Elec. Corp., 113 AD2d 412 , 416). (Appeal from Order of Supreme Court, Monroe County, Galloway, J.—Partial Summary Judgment.) Present—Green, J. P., Pine, Balio, Callahan and Boehm, JJ.