Summary
holding that the activity in which the plaintiff was engaged, i.e. , applying a new advertisement to the face of a billboard, was "more akin to cosmetic maintenance or decorative modification than to ‘altering’ for purposes of Labor Law § 240," since it merely "changed the outward appearance of the billboard, but did not change the billboard's structure"
Summary of this case from Crescent Beach Club LLC v. Indian Harbor Ins. Co.Opinion
169.
Decided June 29, 2005.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered February 7, 2005. The Appellate Division modified, on the law, an order of the Supreme Court, Westchester County (John R. LaCava, J.), which had granted that branch of defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) cause of action and denied that branch of his cross motion for partial summary judgment on the issue of liability on that cause of action. The modification consisted of denying that branch of the motion for summary judgment dismissing the Labor Law § 240 (1) cause of action. The following question was certified by the Appellate Division: "Was the decision and order of this court, dated February 7, 2005, properly made?"
Munoz v. DJZ Realty, LLC, 15 AD3d 363, reversed.
Law Offices of Craig P. Curcio, Middletown ( Gordon T. Sakow of counsel), for appellant. Brecher Fishman Pasternack Popish Heller Reiff Walsh, P.C., New York City ( Frank Gulino of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and defendant's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action granted. The certified question should be answered in the negative.
Plaintiff was injured in a fall while applying a new advertisement to the face of a billboard that sat atop a building owned by defendant. Plaintiff's activities may have changed the outward appearance of the billboard, but did not change the billboard's structure, and thus were more akin to cosmetic maintenance or decorative modification than to "altering" for purposes of Labor Law § 240 (1) ( see Joblon v. Solow, 91 NY2d 457, 465).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed, etc.