Opinion
242 302050/12.
02-16-2016
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.
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.
Opinion
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 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 1998; see Amendola v. Rheedlen 125th St., LLC, 105 A.D.3d 426, 963 N.Y.S.2d 30 1st Dept.2013; Bodtman v. Living Manor Love, Inc., 105 A.D.3d 434, 963 N.Y.S.2d 35 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 A.D.3d 234, 808 N.Y.S.2d 26 1st Dept.2005, lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 2006 ).
MAZZARELLI, J.P., FRIEDMAN, SWEENY, MANZANET–DANIELS, JJ., concur.