Opinion
December 26, 1991
Appeal from the Court of Claims (Hanifin, J.).
Claimant Marilyn Mosher's employer was engaged by the State to resurface 3.4 miles of State Route 17 in Chemung County at grade with asphalt concrete. She was riding in the back of a truck stacking traffic cones handed up to her by a coemployee when the truck suddenly stopped, causing her to fall forward and sustain injuries. The Court of Claims granted the State's motion for summary judgment dismissing the causes of action which alleged violations of Labor Law §§ 200 and 240 (1), but denied dismissal of the cause of action brought under Labor Law § 241 (6). The State has appealed.
We are unable to agree with claimants' contention that adherence to the philosophy underpinning the Labor Law compels us to find that the contract work on Route 17 was "construction" within the ambit of the statute. In support of this contention, claimants cite to the definitions provided in 12 NYCRR 23-1.4. We find that the nature of the construction work performed in the cases relied upon by claimants renders them distinguishable (compare, Maher v Atlas Tr. Mix Corp., 104 A.D.2d 591 [pouring ready mix concrete on a new driveway]; Kahn v Gates Constr. Corp., 103 A.D.2d 438 [work on ocean floor on underwater overflow pipe]; Page v State of New York, 73 A.D.2d 479, affd on opns below 56 N.Y.2d 604 [installation of a sanitary sewer system]; Tilkins v City of Niagara Falls, 52 A.D.2d 306 [earthen trench collapsed during installation of water and sewer lines]). Recent decisions demonstrate that courts continue to reject attempts to broaden and extend the scope of Labor Law § 241 (6) (see, e.g., Whitaker v Norman, 146 A.D.2d 938, affd 75 N.Y.2d 779; Manente v Ropost, Inc., 136 A.D.2d 681). Even more to the point, this court found that there is no basis upon which to characterize a level road as a building or structure within the meaning of that statute (see, Matter of Dillon v State of New York, 167 A.D.2d 574). In Ares v State of New York ( 176 A.D.2d 203) the Second Department, citing to Matter of Dillon v State of New York (supra), recently held that "Labor Law § 241 applies only to work attendant upon the construction or demolition of buildings, and a highway cannot be considered a building within the meaning of the statute" (see, Vincent v Dresser Indus., 172 A.D.2d 1033).
We find neither a basis on which, nor a reason, to depart from these recent decisions which specifically hold that a level road or highway is not a building or structure giving rise to the imposition of liability upon an owner for a violation of Labor Law § 241 (6). We therefore hold that the Court of Claims erred in failing to grant summary judgment dismissing the cause of action predicated upon the State's alleged violation of that statute.
Mahoney, P.J., Casey, Levine and Harvey, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motion regarding the claim under Labor Law § 241 (6); motion granted, summary judgment awarded to the State and said claim dismissed; and, as so modified, affirmed.