Lannon v. 356 West 44th Street Restaurant, Inc. , 24 N.Y.S.3d 904 ( 2016 )

Lannon v 356 W. 44th St. Rest., Inc. (2016 NY Slip Op 01129)

Lannon v 356 W. 44th St. Rest., Inc.

2016 NY Slip Op 01129

Decided on February 16, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2016
Mazzarelli, J.P., Friedman, Sweeny, Manzanet-Daniels, JJ.

242 302050/12

[*1]Seamus Lannon, et al., Plaintiffs-Appellants,

v

356 West 44th Street Restaurant, Inc., et al., Defendants-Respondents.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.

Lewis, Brisbois, Bisgaard & Smith, LLP, New York (Nicholas P. Hurzeler of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered December 8, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the Labor Law § 240(1) claim, unanimously affirmed, without costs.

Dismissal of the Labor Law § 240(1) claim was proper in this action where plaintiff Seamus Lannon was injured when he fell from a two-story building while installing flag holders on the exterior of defendants' building facade. The record establishes that plaintiff was not engaged in a protected activity under Labor Law § 240(1) at the time of his accident. Plaintiff testified that the installation of the three flag holder brackets entailed marking the location of the screws, drilling three holes for each bracket, placing plastic fasteners in the holes, and attaching each flag holder with three screws to hold it in place. Such work did not constitute "altering" since it did not result in a "significant physical change" to the building's structure (Joblon v Solow, 91 NY2d 457, 465 [1998]; see Amendola v Rheedlen 125th St., LLC, 105 AD3d 426 [1st Dept 2013]; Bodtman v Living Manor Love, Inc., 105 AD3d 434 [1st Dept 2013]). The cosmetic and nonstructural nature of the work is reflected by the temporary placement of the flags to enhance the exterior appearance of the building during the St. Patrick's Day celebration, after which they were removed (see Anderson v Schwartz, 24 AD3d 234 [1st Dept 2005], lv denied 7 NY3d 707 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2016

CLERK