Palmer v. Butts

—Order unanimously affirmed with costs. Memorandum: On a prior appeal in this action, we stated that H. Robert Butts, as the owner of the property on which the accident occurred, “had a nondelegable duty under Labor Law § 240 (1) and § 241 (6) even though the property is subject to an easement that he granted to [third-party defendant] Niagara Mohawk [Power Corporation] and even though Butts did not exercise any supervision and control over the work being performed by plaintiff [Lonnie R. Palmer] or benefit from such work” (Palmer v Alltel N. Y., 227 AD2d 914 , 915, lv denied 89 NY2d 805 ). Niagara Mohawk’s reliance on McGregor v Bravo ( 251 AD2d 1002 ) is misplaced. The tree trimming in this case constituted site preparation that was “necessary and incidental to or an integral part of’ the erection of utility poles, and thus was a protected activity under section 240 (1) of the Labor Law (Mosher v St. Joseph’s Villa, 184 AD2d 1000 , 1002; see, Lombardi v Stout, 80 NY2d 290 , 296).

Supreme Court properly determined that the third-party action for indemnification and/or contribution is not barred by the 1996 amendment to Workers’ Compensation Law § 11 because the employee’s underlying action for personal injuries was commenced before September 10, 1996 (see, Blessinger v