Opinion
March 9, 1998
Appeal from the Supreme Court, Suffolk County (D'Emilio, J.).
Ordered that the order is affirmed, with one bill of costs.
The plaintiff was employed by the third-party defendant second third-party defendant, Suffolk Cement Products, Inc. (hereinafter Suffolk), as a cement truck driver. On December 11, 1989, he delivered cement to a site in Southampton where a building was being constructed by the defendant third-party plaintiff Dame Construction, Inc. (hereinafter Dame) on property owned by the defendant second third-party plaintiff E.C.H. Holding Corp. (hereinafter E.C.H.). After making the delivery, the plaintiff drove his truck a short distance away and began washing out the truck, using the hose and water that were on the truck. After washing the cement chutes, the plaintiff climbed a ladder to a platform on the top of the truck to wash the hopper and the rim of the barrel. The plaintiff was standing on the platform when his feet slipped and he fell to the ground.
The plaintiff subsequently commenced this action pursuant to Labor Law § 240 (1) and § 241 (6) against, among others, E.C.H. and Dame, which then commenced third-party actions against Suffolk, the plaintiff's employer.
Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for the protection of workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure ( see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509; see also, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494). However, the protection of the statute is limited by its express terms to those situations involving "`the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'" ( Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002; Jock v. Fien, 80 N.Y.2d 966). It is well settled that the statute does not apply to routine maintenance in a non-construction, non-renovation context ( see, Phillips v. City of New York, 228 A.D.2d 570; Howe v. 1660 Grand Is. Blvd., 209 A.D.2d 934; Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592). It is clear from the record that the plaintiff was injured while performing a routine cleaning of his truck, an activity which was neither necessary nor incidental to the erection or repair of a building or structure ( see, Shields v. St. Marks Hous. Assocs., 230 A.D.2d 903; Gentile v. New York City Hous. Auth., 228 A.D.2d 296; Rennoldson v. Volpe Realty Corp., 216 A.D.2d 912; Sandi v. Chaucer Assocs., 170 A.D.2d 663).
Contractors and owners must provide "`reasonable and adequate protection and safety' to employees working in, and persons lawfully frequenting, `[a]ll areas in which construction, excavation or demolition work is being performed'" ( Jock v. Fien, supra, at 968, quoting Labor Law § 241; Perchinsky v. State of New York, 232 A.D.2d 34). The dismissal of the plaintiff's claim pursuant to Labor Law § 241 (6) was also proper since the plaintiff was not engaged in "construction work" within the meaning of the statute when he fell ( see, Houchang Haghighi v. Bailer, 240 A.D.2d 368; Bermel v. Board of Educ., 231 A.D.2d 663; Phillips v. City of New York, supra).
Thompson, J. P., Pizzuto, Joy and Florio, JJ., concur.