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Mostafa ZOLFAGHARI, Plaintiff–Appellant, v. HUGHES NETWORK SYSTEMS, LLC, Exxon Mobil Corporation and RTE a Setauket Realty, Defendants–Respondents.

Exxon Mobil Corporation, Third–Party Plaintiff–Appellant, v. Atlanta Network Systems, Inc., Third–Party Defendant–Respondent.

Decided: October 05, 2012

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ. Kenny & Kenny, PLLC, Syracuse (Michael P. Kenny of Counsel), for Plaintiff–Appellant. Mendes & Mount, LLP, Newark, New Jersey (William T. Wachenfeld of Counsel), for Defendant–Respondent Exxon Mobil Corporation and Third–Party Plaintiff–Appellant. Hurwitz & Fine, P.C., Buffalo (David R. Adams of Counsel), for Defendant–Respondent Hughes Network Systems, LLC and Third–Party Defendant–Respondent. Costello, Cooney & Fearon, PLLC, Syracuse (Jennifer L. Wang of Counsel), for Defendant–Respondent RTE A Setauket Realty.

Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he allegedly sustained when he fell off a ladder while trying to remove a satellite dish attached to the outside wall of a gas station. The satellite dish was being removed because defendant Rte A Setauket Realty (Setauket) was in the process of changing from an Exxon station to a Gulf station, and the satellite dish was owned by defendant Exxon Mobil Corporation (Exxon). Exxon had contracted with defendant Hughes Network Systems, LLC (Hughes), which in turn contracted with Atlanta Network Systems, Inc. (Atlanta) to perform the removal services. Atlanta employed plaintiff to remove the dish from Setauket's station. Exxon commenced a third-party action against Atlanta contending, inter alia, that it was a third-party beneficiary of the indemnification agreement between Atlanta and Hughes. Supreme Court denied plaintiff's motion for partial summary judgment on liability under Labor Law §§ 240(1) and 241(6), granted the cross motion of Exxon and those parts of the cross motions of Setauket, as well as Atlanta and Hughes, for summary judgment dismissing the complaint in the main action, and granted Atlanta's cross motion for summary judgment dismissing the third-party complaint.

We note at the outset that plaintiff, as limited by his brief on appeal, contends only that the court erred in granting those parts of the cross motions for summary judgment dismissing the causes of action pursuant to Labor Law §§ 240(1) and 241(6). Plaintiff contends with respect to Labor Law § 240(1) that he was engaged in the “alteration” of a building or structure within the meaning of that section. We reject that contention. To obtain the protections afforded by Labor Law § 240(1), a worker must be engaged in “altering” a building or structure, i.e., “making 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).

Here, plaintiff's task involved no more than manually unplugging a cord, loosening a small number of bolts by hand and with a wrench, cutting a wire with a hand tool, and lifting the dish apparatus from a bracket and face plate that remained attached to the building. That work did not require plaintiff to come in physical contact with the building itself, involved no power tools, no drilling of holes, and no feeding of wire through conduits. In short, plaintiff's work did not require that a significant physical change be made to the gas station building (see Widawski v. 217 Elizabeth St. Corp., 40 A.D.3d 483, 485, 838 N.Y.S.2d 496; Maes v. 408 W. 39 LLC, 24 A.D.3d 298, 299–300, 808 N.Y.S.2d 613, lv denied 7 N.Y.3d 716, 826 N.Y.S.2d 605, 860 N.E.2d 67; Anderson v. Schwartz, 24 A.D.3d 234, 234, 808 N.Y.S.2d 26, lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276). Contrary to plaintiff's contention, the work involved in the removal or “de-installation” of a satellite dish system is not the same as that involved in the installation of such a system within the context of Labor Law § 240(1) (see e.g. Tassone v. Mid–Valley Oil Co., 291 A.D.2d 623, 624, 738 N.Y.S.2d 103, lv denied 100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194; Di Giulio v. Migliore, 258 A.D.2d 903, 903–904, 685 N.Y.S.2d 379).

Plaintiff contends with respect to Labor Law § 241(6) that his work constituted “demolition” within the meaning of that statute. Plaintiff's contention was raised for the first time in his reply papers, however, and it therefore was not properly before the court (see New Yorkers for Constitutional Freedoms v. New York State Senate, ––– AD3d ––––, –––– [July 6, 2012]; Watts v. Champion Home Bldrs. Co., 15 AD3d 850, 851). In any event, we conclude that plaintiff's contention is without merit.

Exxon contends on its appeal that the court erred in determining that Exxon was not covered by the indemnification agreement between Hughes and Atlanta and thus erred in granting that part of Atlanta's cross motion for summary judgment dismissing the third-party complaint with respect to contractual indemnification. We reject that contention. The agreement between Hughes and Atlanta expressly negated any intent to indemnify third-party beneficiaries, including Exxon (see Mid–Valley Oil Co., Inc. v. Hughes Network Sys., Inc., 54 A.D.3d 394, 396, 863 N.Y.S.2d 244, lv dismissed in part and denied in part 12 N.Y.3d 881, 883 N.Y.S.2d 175, 910 N.E.2d 1005; see also Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786–787, 811 N.Y.S.2d 294, 844 N.E.2d 748).

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