Opinion
2011-11-1
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 A.D.3d 1089, 1091–1092, 807 N.Y.S.2d 421 [2005], lv. denied 6 N.Y.3d 710, 814 N.Y.S.2d 599, 847 N.E.2d 1172 [2006]; Munoz v. DJZ Realty, LLC, 5 N.Y.3d 747, 800 N.Y.S.2d 866, 834 N.E.2d 776 [2005]; Adair v. Bestek Light. & Staging Corp., 298 A.D.2d 153, 748 N.Y.S.2d 362 [2002] ).
We have considered plaintiff's remaining arguments and find them unavailing.
GONZALEZ, P.J., TOM, SWEENY, RENWICK, JJ., concur.