Benfanti v. Tri-Main Development, L.P.

Order unanimously reversed on the law without costs, motion denied, complaint reinstated and cross motion granted. Memorandum: Supreme Court erred in granting defendant’s summary judgment motion and in denying plaintiffs cross motion for summary judgment on liability under Labor Law § 240 (1). Plaintiff Charles P. Benfanti, an electrician, fell approximately eight feet from a ladder to the ground while attempting to loosen a drain pipe. We conclude that removal of a portion of the drain pipe leading to the building’s main sewer line for the purpose of unclogging and repairing it constitutes the repair of a structure within the meaning of Labor Law § 240 (1), rather than routine maintenance (see, Holka v Mt. Mercy Academy, 221 AD2d 949 , lv dismissed 87 NY2d 1055 ; Fuller v Niagara Mohawk Power Corp., 213 AD2d 986 , lv denied 86 NY2d 708 ; cf., Smith v Shell Oil Co., 85 NY2d 1000 ; Rennoldson v Volpe Realty Corp., 216 AD2d 912 , lv dismissed 86 NY2d 837 ). (Appeal from Order of Supreme Court, Erie County, Whelan, J.— Summary Judgment.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.