Opinion
4810, 158373/13, 595009/16.
10-26-2017
Mark PEREZ, Plaintiff–Respondent, v. BEACH CONCERTS, INC., et al., Defendants, Live Nation Worldwide, Inc., et al., Defendants–Appellants. [And a Third–Party Action].
Hannum Feretic Prendergast & Merlino, LLC, New York (Kerri M. Hoffman of counsel), for appellants. Morelli Law Firm PLLC, New York (David Sirotkin of counsel), for respondent.
Hannum Feretic Prendergast & Merlino, LLC, New York (Kerri M. Hoffman of counsel), for appellants.
Morelli Law Firm PLLC, New York (David Sirotkin of counsel), for respondent.
TOM, J.P., MANZANET–DANIELS, OING, SINGH, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered July 1, 2016, which, insofar as appealed from, granted plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim as against defendant Live Nation Worldwide, Inc. (Live Nation), unanimously affirmed, without costs.
The court properly granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim because Live Nation was the "owner" of the accident site in its role as licensee of Jones Beach Marine Theatre. The record demonstrates that as licensee, Live Nation had the sole authority to operate and maintain the premises, including the right to insist that workers on the site follow proper safety practices (see Zaher v. Shopwell, Inc., 18 A.D.3d 339, 339–340, 795 N.Y.S.2d 223 [1st Dept.2005] ; Bart v. Universal Pictures, 277 A.D.2d 4, 5, 715 N.Y.S.2d 240 [1st Dept.2000] ; Seferovic v. Atlantic Real Estate Holdings, LLC, 127 A.D.3d 1058, 1060, 7 N.Y.S.3d 458 [2d Dept.2015] ). The court did not err in considering the merger agreement showing that Live Nation was the licensee of the premises for the first time in reply, because plaintiff submitted that document in response to an argument made in opposition to the motion (see Rodriguez v. Weinstein Enters., Inc., 113 A.D.3d 483, 484, 978 N.Y.S.2d 204 [1st Dept.2014] ).
The court also properly found that plaintiff was engaged in the alteration of a structure at the time of the accident. When he fell, plaintiff was helping set up the second tier truss system of a sponsorship booth. This truss system constituted a "structure" because, viewed as a whole, it extended the height of the booth from 10 feet to 16 feet, was comprised of several interlocking parts that were connected in a specific way, and required the use of a forklift and several people to construct it (see Lewis–Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434 [1991] ; McCoy v. Kirsch, 99 A.D.3d 13, 16–17, 951 N.Y.S.2d 32 [2d Dept.2012] ). Although this truss system was being set up to allow for the display of branding, it was not a " ‘decorative modification’ because the work ... entail[ed] far more than a mere change[ ][to] the outward appearance of" the booth and, instead, constituted an alteration to the preexisting structure ( Saint v. Syracuse Supply Co., 25 N.Y.3d 117, 126, 8 N.Y.S.3d 229, 30 N.E.3d 872 [2015] [internal quotation marks omitted] ).
We have considered appellants' remaining contentions and find them unavailing.