Opinion
December 31, 1998
Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.
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 Lab. (1) and § 241 Lab. (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 A.D.2d 914, 915, lv denied 89 N.Y.2d 805). Niagara Mohawk's reliance on McGregor v. Bravo ( 251 A.D.2d 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 Lab. (1) of the Labor Law ( Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 1002; see, Lombardi v. Stout, 80 N.Y.2d 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 Work. Comp. because the employee's underlying action for personal injuries was commenced before September 10, 1996 ( see, Blessinger v. Estee Lauder Cos., 246 A.D.2d 363).
Present — Green, J. P., Wisner, Pigott, Jr., Callahan and Fallon, JJ.