CROCE v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

Marvin Della CROCE, et al., Plaintiffs-Appellants-Respondents, v. The CITY OF NEW YORK, Defendant-Respondent-Appellant.

Decided: August 29, 2002

NARDELLI, J.P., SULLIVAN, ELLERIN, RUBIN, and FRIEDMAN, JJ. Alexander J. Wulwick, for Plaintiffs-Appellants-Respondents. Judah Z. Cohen, for Defendant-Respondent-Appellant.

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered April 7, 2000, which, insofar as appealed from, denied plaintiff's motion for partial summary judgment on the issue of defendant's liability under Labor Law § 240(1), and granted defendant's cross motion for summary judgment insofar as addressed to the cause of action under Labor Law § 240(1) and denied the cross motion insofar as addressed to the cause of action under Labor Law § 241(6), unanimously modified, on the law, to dismiss the cause of action under Labor Law § 241(6), and otherwise affirmed, without costs.

Plaintiff, a Transit Authority employee, alleges that he fell off a ladder while attaching a three-by-five-foot bulletin board to the wall of a subway station locker room owned by defendant City. The motion court correctly held that such work did not involve “making a significant physical change to the configuration or composition of the building or structure,” and therefore did not constitute “altering” within the meaning of Labor Law § 240(1) (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237;  compare, Futterman v. Rela Realty Corp., 283 A.D.2d 261, 724 N.Y.S.2d 310, with Catoliato v. Sam's Club, 254 A.D.2d 62, 678 N.Y.S.2d 331, lv. dismissed 93 N.Y.2d 888, 689 N.Y.S.2d 430, 711 N.E.2d 644).

Plaintiff's claims based on Labor Law § 241(6) should also have been dismissed since plaintiff was not performing any of the tasks enumerated in Rule 23 of the Industrial Code (12 NYCRR 23-1.4[b][13] ) when he was injured (see, Joblon, supra, at 466, 672 N.Y.S.2d 286, 695 N.E.2d 237).