| Travers v RCPI Landmark Props., LLC |
| 2010 NY Slip Op 04989 [74 AD3d 956] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Eugene Travers et al., Appellants, v RCPI LandmarkProperties, LLC, Respondent. |
—[*1] Tarshis & Hammerman (Carol R. Finocchio, New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of a judgment of the Supreme Court, Nassau County (LaMarca, J.),dated May 29, 2009, as, upon so much of an order of the same court entered April 24, 2009, asgranted those branches of the defendant's motion which were, in effect, for summary judgmentdismissing their claims to recover damages for violation of Labor Law § 240 (1) and forcommon-law negligence, is in favor of the defendant and against them.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff Eugene Travers (hereinafter the plaintiff) allegedly was injured when he wasstruck by an audio speaker that fell from a forklift while he was working as a stagehand at RadioCity Music Hall. The plaintiff and his wife, suing derivatively, commenced this action againstthe defendant, the owner of the building. The Supreme Court granted the defendant's motion,inter alia, for summary judgment dismissing the plaintiff's claims to recover damages forviolation of Labor Law § 240 (1) and for common-law negligence.
The Supreme Court properly granted that branch of the defendant's motion which was forsummary judgment dismissing the plaintiff's claim for damages based upon a violation of LaborLaw § 240 (1). The defendant met its initial burden of establishing, prima facie, that theplaintiff's accident did not occur while the plaintiff was engaged in any of the activitiesenumerated in Labor Law § 240 (1). At the time of the alleged injury, the plaintiff wasmoving speakers that had been lowered onto a stage by forklift. The plaintiff's job was to movethe speakers to the appropriate locations on the stage. This activity is not covered by the statute(see Holler v City of New York, 38AD3d 606, 607 [2007]).
In opposition to the defendant's prima facie showing, the plaintiffs failed to raise a triableissue of fact (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Theplaintiff's contention that he was engaged in the erection of a temporary stage is unsupported bythe evidence. Since the plaintiff's activity did not constitute erection, demolition, repairing,altering, painting, cleaning, or pointing of a building or structure, the plaintiff was not entitled toprotection under the statute (see Holler v City of New York, 38 AD3d at 607; Lioce v Theatre Row Studios, 7 AD3d493 [2004]; Adair v Bestek Light. & Staging Corp., [*2]298 AD2d 153 [2002]).
The Supreme Court also properly granted that branch of the defendant's motion which wasfor summary judgment dismissing the plaintiff's claim for damages based upon common-lawnegligence on the ground that the defendant was an out-of-possession landlord who was notliable for the plaintiff's injuries. The defendant established, prima facie, that it was anout-of-possession landlord by submitting the lease which obligated the tenant to maintain theinterior of the premises and make all necessary repairs. The defendant also submitted thedeposition testimony of the assistant property manager at the time of the plaintiff's accident,which established that the defendant was not involved in the daily operations, maintenance, orrepair of the interior of the music hall. While the defendant retained a right to enter the premises,the plaintiff failed to raise a triable issue of fact in that he failed to demonstrate that his injurieswere proximately caused by a defect which constituted a specific statutory violation. Thus, theSupreme Court properly granted that branch of the defendant's motion which was for summaryjudgment dismissing the claim for damages based upon common-law negligence (see Sanchez v Barnes & Noble, Inc.,59 AD3d 698 [2009]; Brewster vFive Towns Health Care Realty Corp., 59 AD3d 483 [2009]; Conte v Frelen Assoc., LLC, 51 AD3d620 [2008]). Rivera, J.P., Florio, Angiolillo and Austin, JJ., concur. [Prior CaseHistory: 2009 NY Slip Op 30951(U).]