Allen v City of New York

Allen v City of New York 2011 NY Slip Op 07672 Decided on November 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 1, 2011
Gonzalez, P.J., Tom, Sweeny, Renwick, JJ.
5900 6862/04

[*1]Jean Allen, etc., Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent, New York Yankees Partnership, et al., Defendants.




Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for appellant.
Brody, Benard & Branch, LLP, New York (Mary Ellen O'Brien
of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 9, 2010, which, insofar as appealed from as limited by the briefs, granted defendant City of New York's motion for summary judgment dismissing the Labor Law § 240(1) cause of action as against it, and denied plaintiff's cross motion for summary judgment on that cause of action, unanimously affirmed, without costs.

Plaintiff's decedent, an employee of a traveling carnival, was injured while preparing an amusement ride for use at a carnival on City-owned property. Contrary to plaintiff's contention, the decedent was not engaged in the erection of a structure as contemplated by Labor Law § 240(1). He was installing scenery panels as a backdrop to the ride, which came pre-built (see Hodges v Boland's Excavating & Topsoil, Inc., 24 AD3d 1089, 1091-1092 [2005], lv denied 6 NY3d 710 [2006]; Munoz v DJZ Realty, LLC, 5 NY3d 747 [2005]; Adair v Bestek Light. & Staging Corp., 298 AD2d 153 [2002]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2011

CLERK