Larry Munoz v DJZ Realty, LLC

Munoz v DJZ Realty, LLC 2005 NY Slip Op 05447 [5 NY3d 747] June 29, 2005 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 28, 2005

[*1] Larry Munoz, Respondent, et al., Plaintiff,
v
DJZ Realty, LLC, Appellant. (And a Third-Party Action.)

Decided June 29, 2005

Munoz v DJZ Realty, LLC, 15 AD3d 363, reversed.

APPEARANCES OF COUNSEL

Law Offices of Craig P. Curcio, Middletown (Gordon T. Sakow of counsel), for appellant.

Brecher Fishman Pasternack Popish Heller Reiff & Walsh, P.C., New York City (Frank Gulino of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and [*2]defendant's motion for summary judgment dismissing the Labor Law § 240 (1) cause of action granted. The certified question should be answered in the negative.

Plaintiff was injured in a fall while applying a new advertisement to the face of a billboard that sat atop a building owned by defendant. Plaintiff's activities may have changed the outward appearance of the billboard, but did not change the billboard's structure, and thus were more akin to cosmetic maintenance or decorative modification than to "altering" for purposes of Labor Law § 240 (1) (see Joblon v Solow, 91 NY2d 457, 465 [1998]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.