Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Glownia, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Boehm, JJ.
Order insofar as appealed from unanimously reversed on the law without costs and motions granted. Memorandum: Plaintiff William Henneberry (plaintiff) was assisting in the delivery of a light rail rapid transit car that was being moved from property owned by third-party defendant Higgins Erectors Haulers, Inc. (Higgins) to property allegedly owned by defendant City of Buffalo (City). He was holding a "tag line" to steady the car as it was lifted over a fence separating the properties. "During the course of lowering [the car] to the tracks, the crane operated by Higgins caused the car to drop" (Higgins Erectors Haulers v Niagara Frontier Transp. Auth., 140 A.D.2d 982, lv dismissed 73 N.Y.2d 851) and strike plaintiff. Plaintiffs commenced this action against the City and the Niagara Frontier Transportation Authority, the operator of the rapid transit system, alleging liability under Labor Law § 240 (1) and § 241 (6). Defendants' and third-party defendant's motions for summary judgment on the section 240 (1) cause of action should have been granted because plaintiff was not engaged in any of the activities enumerated in the statute (see, Vilardi v. Berley, 201 A.D.2d 641; Vincent v. Dresser Indus., 172 A.D.2d 1033, 1034, lv denied 78 N.Y.2d 864). He was assisting in delivery of the car, which is not "erection, demolition, repairing, altering, painting, cleaning or pointing" (Labor Law § 240).
The IAS Court also should have granted defendants' and third-party defendant's motions for summary judgment on the section 241 (6) cause of action. Although the scope of section 241 (6) "is not limited to building sites" (Mosher v. State of New York, 80 N.Y.2d 286, 288), it is limited to "safety precautions during construction, excavation and demolition operations" (Mosher v. State of New York, supra, at 287). Plaintiff was not engaged in any of the covered activities.