Michael C. Sordi, for Appellant
Richard DaVolio and Robert I. Elan, for Respondents.
Ross P. Masler, for third-party Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed with costs.
Plaintiff was injured when he jumped off an eight-foot Aframe stepladder, which began to tip after he climbed four or five of its stairs to inspect a free-standing, illuminated Shell Oil sign at Rye Shell Auto Care, a Shell service station in Rye, New Yo rk. Plaintiff was employed as a maintenance mechanic by third-party defendant Island Pump and Tank Corp. (Island). Island had a contract with Shell Oil Company to effect maintenance and miscellaneous repairs to Shell's facilities on Long Island and in We schester County. On the date he was injured, plaintiff had been assigned to fix the sign. After he was injured, plaintiff again climbed the ladder, determined that the sign was not working because four lightbulbs needed to be replaced and thereafter rep laced the bulbs.
Plaintiff commenced this action against Shell and Rye Shell, as owner and contractor, relying solely on Labor Law § 240(1). Defendants interposed an action for indemnification against Island as plaintiff's employer. Rye Shell, joined by Shell and I sland, subsequently moved for summary judgment dismissing the complaint. Plaintiff cross-moved for summary judgment in his favor on the issue of liability. Supreme Court granted defendants' and Island's motions for summary judgment, denied plaintiff's c ross-motion, and dismissed the complaint, reasoning that the Shell sign was neither a building nor a structure within the meaning of Labor Law § 240. The Appellate Division affirmed on the ground that changing a lightbulb is not repairing as that te rm is used in Labor Law 240(1) (205 AD2d 681). This Court granted plaintiff leave to appeal.
We agree with plaintiff that the Shell sign is a structure as that term is used in the statute. In Lewis Moors v Contel of New York (78 NY2d 942) we held that a telephone pole with attached hardware, cable and support s ystems constitutes a structure under Labor Law § 240(1). Like a telephone pole, the free-standing Shell sign is a "'production or piece of work artificially built up or composed of parts in some definite manner'" (id., at 943 [quoting Caddy v Int erborough R.T. Co., 195 NY 415, 420]), and is therefore a structure.
Summary judgment was properly granted, however, because plaintiff was not engaged in any of the statute's enumerated activities at the time of the accident. Changing a lightbulb is not "erection, demolition, repairing, altering, painting, cleaning or po inting of a building or structure" (Labor Law § 240[1]). An illuminated sign with a burnt-out lightbulb is not broken, and does not need repair. Rather it needs maintenance of a sort different from "painting, cleaning, or pointing," the only types of maintenance provided for in the statute.
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Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.