Opinion
June 5, 1992
Appeal from the Supreme Court, Monroe County, Siracuse, J.
Present — Denman, P.J., Green, Balio, Boehm and Fallon, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court correctly determined that the injured plaintiff was not "employed" within the meaning of Labor Law § 240 (1). The materials submitted on the summary judgment motion, viewed in the light most favorable to plaintiffs, reveal that defendant Mobil Oil Corp. permitted Courtney, the lessee of a Mobil gas station, to remove a tire rack from a second Mobil station under demolition. Plaintiff Donald B. Meehan, an employee of Courtney, was injured when he fell off a stepladder while attempting to detach the tire rack from the wall of the second gas station. The demolition contract between Mobil and defendant Bennett Construction, Inc. did not require the taking of the tire rack from the wall prior to demolition of the structure. Under the circumstances, detachment of the tire rack was not incidental or necessary to, or an integral part of, the scheduled demolition work (see, Mosher v. St. Joseph's Villa, 184 A.D.2d 1000 [decided herewith]; Cox v. LaBarge Bros. Co. [appeal No. 2], 154 A.D.2d 947, lv dismissed 75 N.Y.2d 808), and Meehan was not hired by an owner, contractor or their agent to perform demolition work (see, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577; Whelen v Warwick Val. Civic Social Club, 47 N.Y.2d 970, 971).
Supreme Court erred, however, in denying defendant Bennett Construction's motion for summary judgment on the common-law negligence and Labor Law § 241 (6) causes of action. The liability of a general contractor for negligence or for a section 241 (6) violation extends only to workers employed or lawfully upon the premises to perform construction, excavation or demolition work (see, Gibson v. Worthington Div., 78 N.Y.2d 1108, 1109; Mordkofsky v. V.C.V. Dev. Corp., supra, at 577). As stated above, Meehan was not performing work incidental or necessary to the scheduled demolition.