ANDINO v. The City of New York, et al., Defendants-Respondents, (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered October 5, 2022, which, insofar as appealed from, denied KM Productions N.Y. Inc.’s motion for summary judgment dismissing all third-party common-law claims against it, denied plaintiff's motion for partial summary judgment on her claims pursuant to Labor Law §§ 240(1), and 241(6) against defendants AT & T Mobility Service, Inc., Wizards Studios North, Inc., Mosaic Sales Studios U.S. Operating Cp., and partial summary judgment on her Labor Law § 200 claim against Wizard and Mosaic, and granted defendants Wizard, Mosaic, AT & T, and City of New York's motion to the extent of dismissing plaintiff's claims pursuant to Labor Law §§ 240(1) and 241(6), unanimously modified, on the law, to grant Wizard and Mosiac summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment dismissing the complaint.

The motion court correctly found that plaintiff, a stagehand who was affixing decorative banners to a previously erected structure, was not engaged in work that triggered the protections of Labor Law §§ 240(1) or 241(6) (see Adair v. Bestek Light. & Staging Corp., 298 A.D.2d 153, 153, 748 N.Y.S.2d 362 [1st Dept. 2002];  Perchinsky v. State of New York, 232 A.D.2d 34, 37–38, 660 N.Y.S.2d 177 [3d Dept. 1997], lv denied 93 N.Y.2d 812, 695 N.Y.S.2d 540, 717 N.E.2d 699 [1999];  see also Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985];  Royce v. Dig EH Hotels, LLC, 139 A.D.3d 567, 568, 33 N.Y.S.3d 172 [1st Dept. 2016];  Allen v. City of New York, 89 A.D.3d 406, 931 N.Y.S.2d 853 [1st Dept. 2011]).  The court should also have dismissed plaintiff's common-law and Labor Law § 200 claims since there is no evidence that Wizard or Mosaic actually exercised control over the means and methods of plaintiff's work (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877–878, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993];  McLean v. Tishman Constr. Corp., 144 A.D.3d 534, 535–536, 40 N.Y.S.3d 771 [1st Dept. 2016];  Bisram v. Long Is. Jewish Hosp., 116 A.D.3d 475, 477, 983 N.Y.S.2d 518 [1st Dept. 2014]).

The foregoing determinations render KM's appeal academic since plaintiff's complaint is being dismissed in its entirety.