Memorandum:
Plaintiff appeals from that portion of an order denying his motion for partial summary judgment against defendant, Sahlen Packing Company (Sahlen), on the issue of liability under Labor Law § 240 Lab.(1). Sahlen cross-appeals from the order insofar as it dismissed the recalcitrant worker defense.
We conclude as a matter of law that Sahlen, as the "title owner" of the property, is an owner within the meaning of Labor Law § 240 Lab.(1) ( see, Adimey v. Erie County Indus. Dev. Agency, 89 N.Y.2d 836, revg on dissenting in part mem at 226 A.D.2d 1053). The fact that the utility pole was owned by third-party defendant, Niagara Mohawk Power Corporation (Niagara Mohawk), is of no moment, nor is the fact that the pole was located within an easement granted to Niagara Mohawk ( see, Coleman v. City of New York, 91 N.Y.2d 821, 822-823; cf., Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 560). Additionally, as a matter of law, plaintiff was engaged in a protected activity, i.e., the "demolition" or "altering" of a "structure", the pole and its appurtenances ( see, Lewis-Moors v. Contel of N. Y., 78 N.Y.2d 942, 943; Girty v. Niagara Mohawk Power Corp., 262 A.D.2d 1012 [decided June 18, 1999]; see generally, Labor Law § 240 Lab.[1]). Nevertheless, there are triable issues of fact concerning whether the absence of or defective condition or placement of a safety device was a proximate cause of plaintiff's injuries ( see, Weininger v. Hagedorn Co., 91 N.Y.2d 958, 959-960, rearg denied 92 N.Y.2d 875; Felker v. Corning Inc., 90 N.Y.2d 219, 224; Karas v. Corning Hosp. [appeal No. 1], 262 A.D.2d 1039 [decided June 18, 1999]; Mortellaro v. State Farm Mut. Automobile Ins. Co., 259 A.D.2d 968).
We have considered the contention raised by Sahlen on its cross appeal and conclude that it is without merit.