RENNOLDSON v. JAMES J. VOLPE REALTY CORP

Appeal from the Supreme Court, Monroe County, Siragusa, J.

Order unanimously reversed on the law without costs, motion denied, cross motion granted and first cause of action dismissed. Memorandum: Gerald Rennoldson (plaintiff), a maintenance worker at Delta Sonic Car Wash, was injured when he fell from a ladder while replacing a leaking tube on a car wash machine. Supreme Court erred in denying the cross motion of defendant James F. Volpe, Sr., the property owner, for partial summary judgment dismissing the Labor Law § 240 (1) cause of action against him. That statute does not apply here because plaintiff "was merely performing routine maintenance in a non-construction, non-renovation context" (Howe v. 1660 Grand Is. Blvd., 209 A.D.2d 934, lv denied 85 N.Y.2d 803). Even assuming, arguendo, that the machine constitutes a "structure," the replacement of a leaking tube is not a repair or alteration within the meaning of the statute (see, Labor Law § 240; Smith v. Shell Oil Co., 205 A.D.2d 681, lv granted 84 N.Y.2d 810; Cosentino v. Long Is. R.R., 201 A.D.2d 528; Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592).