DOWNES v. BOOM STUDIO INC (1998)

Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about December 16, 1996, which, inter alia, denied plaintiff's cross motion for partial summary judgment upon his cause of action premised on Labor Law § 240(1), unanimously modified, on the law, and upon a search of the record, to grant summary judgment in favor of defendant dismissing the complaint insofar as it alleges violation of Labor Law § 240(1), and otherwise affirmed, without costs.

During his employment as a photographer's assistant at defendant's studio, plaintiff fell off a ladder while adjusting a paper backdrop and was injured.   In this action, he seeks to recover from defendant for his injuries, alleging, inter alia, that he comes within the protective ambit of Labor Law § 240(1), which imposes a nondelegable duty upon owners and general contractors to furnish appropriate safety devices to workers during the “erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure” (id.).   Plaintiff, however, at the time of his fall, was not engaged in altering or repairing a building or structure and, accordingly, does not come within the cited statute's protection (see, Tanzer v. Terzi Productions, 244 A.D.2d 224, 664 N.Y.S.2d 44).

We have reviewed plaintiff's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.