Opinion
January 31, 1995
Appeal from the Supreme Court, Bronx County (Douglas E. McKeon, J.).
Plaintiff, an employee of third-party defendant New York City Transit Authority (NYCTA), was injured while replacing a rail on the subway tracks, and instituted this action against the City of New York pursuant to Labor Law § 241 (6). The City then sought indemnification from the NYCTA.
We agree with the Supreme Court that the City was not an "owner" of the accident site within the meaning of the statute, since pursuant to its lease with the NYCTA, the City had no actual or potential control over the worksite and retained a right of re-entry for non-transit purposes only (see, Villani v City of New York, 171 A.D.2d 418). Moreover, the complaint was properly dismissed since the routine maintenance work being performed by plaintiff at the time of the accident did not constitute construction, demolition or excavation changing the structural quality of a building or structure, as contemplated by the statute (see, Alfieri v. New York City Tr. Auth., 190 A.D.2d 594, lv denied 82 N.Y.2d 655; Vilardi v. Berley, 201 A.D.2d 641, lv denied 83 N.Y.2d 760). Finally, the complaint was properly dismissed because plaintiff failed to allege a violation of a specific implementing regulation promulgated under Labor Law § 241 (6) (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494).
Concur — Rosenberger, J.P., Kupferman, Nardelli and Tom, JJ.