WORMUTH v. Daniel Tagliamonte and Cheryl Tagliamonte, Defendants-Respondents. (2006)

 Plaintiff commenced this action to recover damages for injuries he sustained when he fell from a ladder while installing draperies at a house owned by defendants Daniel Tagliamonte and Cheryl Tagliamonte.   The Tagliamontes had entered into a contract with defendant Freeman Interiors, Ltd. (Freeman) to design and install window treatments and, at the time of his fall, plaintiff was installing the draperies pursuant to a subcontract with Freeman.   Supreme Court properly granted the motion of the Tagliamontes for partial summary judgment dismissing the Labor Law § 240(1) and § 241(6) causes of action against them and granted those parts of the cross motion of Freeman for summary judgment dismissing those causes of action against it.   The work being performed by plaintiff does not constitute the alteration of a building or structure within the meaning of Labor Law § 240(1), i.e., it does not involve “a significant physical change to the configuration or composition of the building or structure” (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [emphasis in original];  see generally Schroeder v. Kalenak Painting & Paperhanging, Inc., 27 A.D.3d 1097, 811 N.Y.S.2d 240, affd. 7 N.Y.3d 797, 821 N.Y.S.2d 804, 854 N.E.2d 1268;  Maes v. 408 W. 39 LLC, 24 A.D.3d 298, 299-300, 808 N.Y.S.2d 613).   Defendants also established their entitlement to summary judgment dismissing the Labor Law § 241(6) cause of action because “plaintiff was not involved with construction” (Maes, 24 A.D.3d at 301, 808 N.Y.S.2d 613;  see 12 NYCRR 23-1.4[b][13] ).

 We further conclude that the court properly denied that part of the cross motion of Freeman for summary judgment dismissing the Labor Law § 200 claim against it.   Although Freeman met its initial burden by establishing that it did not supervise or control the work being performed (see generally Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 353, 670 N.Y.S.2d 816, 693 N.E.2d 1068), plaintiff raised a triable issue of fact to defeat that part of the cross motion (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 506, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Ertl v. Ciminelli-Cowper Co., 288 A.D.2d 946, 732 N.Y.S.2d 206;  Houde v. Barton, 202 A.D.2d 890, 891-892, 609 N.Y.S.2d 411, lv. dismissed 84 N.Y.2d 977, 622 N.Y.S.2d 916, 647 N.E.2d 122).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: