Opinion
April 15, 1996
Appeal from the Supreme Court, Westchester County (Shapiro, J.).
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting the branch of the defendant's cross motion which was for summary judgment dismissing the plaintiffs' common-law negligence cause of action and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.
Labor Law § 240 (1) is inapplicable to the facts of this case. At the time of the accident the plaintiff was changing light bulbs on a scoreboard, which is "routine maintenance" and not "repair" work within the meaning of the statute ( see, Smith v Shell Oil Co., 85 N.Y.2d 1000; Manente v. Ropost, Inc., 136 A.D.2d 681; see generally, Brown v. Christopher St. Owners Corp., 87 N.Y.2d 938). In addition, the plaintiff's work was not incidental to any activity covered under the statute ( cf., Lombardi v Stout, 80 N.Y.2d 290; Birbilis v. Rapp, 205 A.D.2d 569; Martin v Back O'Beyond, 198 A.D.2d 479).
However, the Supreme Court improperly dismissed the entire complaint. The complaint, as amplified by the bill of particulars, also alleges a common-law negligence cause of action. Upon this record, it cannot be said that the defendant is entitled to summary judgment on a common-law negligence cause of action. Miller, J.P., Joy, Altman and Friedmann, JJ., concur.