| Zolfaghari v Hughes Network Sys., LLC |
| 2012 NY Slip Op 06697 [99 AD3d 1234] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| Mostafa Zolfaghari, Appellant, v Hughes Network Systems, LLC,et al., Respondents. Exxon Mobil Corporation, Third-Party Plaintiff-Appellant, v AtlantaNetwork Systems, Inc., Third-Party Defendant-Respondent. |
—[*1] Mendes & Mount, LLP, Newark, New Jersey (William T. Wachenfeld of counsel), fordefendant-respondent Exxon Mobil Corporation and third-party plaintiff-appellant. Hurwitz & Fine, P.C., Buffalo (David R. Adams of counsel), for defendant-respondentHughes Network Systems, LLC and third-party defendant-respondent. Costello, Cooney & Fearon, PLLC, Syracuse (Jennifer L. Wang of counsel), fordefendant-respondent Rte A Setauket Realty.
Appeals from an order and judgment (one paper) of the Supreme Court, Onondaga County(James P. Murphy, J.), entered August 18, 2011 in a personal injury action. The order andjudgment denied plaintiff's motion for partial summary judgment, granted defendants' crossmotions for summary judgment, dismissed the complaint, denied the motion of third-partyplaintiff for summary judgment and granted the cross motion of third-party defendant forsummary judgment dismissing the third-party complaint of Exxon Mobil Corporation.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he allegedly sustained when he fell off a ladder while trying to [*2]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 inthe process of changing from an Exxon station to a Gulf station, and the satellite dish was ownedby defendant Exxon Mobil Corporation (Exxon). Exxon had contracted with defendant HughesNetwork 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 fromSetauket'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 andHughes. Supreme Court denied plaintiff's motion for partial summary judgment on liability underLabor Law §§ 240 (1) and 241 (6), granted the cross motion of Exxon and thoseparts of the cross motions of Setauket, as well as Atlanta and Hughes, for summary judgmentdismissing the complaint in the main action, and granted Atlanta's cross motion for summaryjudgment dismissing the third-party complaint.
We note at the outset that plaintiff, as limited by his brief on appeal, contends only that thecourt erred in granting those parts of the cross motions for summary judgment dismissing thecauses of action pursuant to Labor Law §§ 240 (1) and 241 (6). Plaintiff contendswith respect to Labor Law § 240 (1) that he was engaged in the "alteration" of a building orstructure within the meaning of that section. We reject that contention. To obtain the protectionsafforded by Labor Law § 240 (1), a worker must be engaged in "altering" a building orstructure, i.e., "making a significant physical change to the configuration or compositionof the building or structure" (Joblon v Solow, 91 NY2d 457, 465 [1998]).
Here, plaintiff's task involved no more than manually unplugging a cord, loosening a smallnumber of bolts by hand and with a wrench, cutting a wire with a hand tool, and lifting the dishapparatus from a bracket and face plate that remained attached to the building. That work did notrequire plaintiff to come in physical contact with the building itself, involved no power tools, nodrilling of holes, and no feeding of wire through conduits. In short, plaintiff's work did notrequire that a significant physical change be made to the gas station building (see Widawski v 217 Elizabeth St.Corp., 40 AD3d 483, 485 [2007]; Maes v 408 W. 39 LLC, 24 AD3d 298, 299-300 [2005], lvdenied 7 NY3d 716 [2006]; Anderson v Schwartz, 24 AD3d 234, 234 [2005], lv denied7 NY3d 707 [2006]). 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 ofsuch a system within the context of Labor Law § 240 (1) (see e.g. Tassone vMid-Valley Oil Co., 291 AD2d 623, 624 [2002], lv denied 100 NY2d 502 [2003];Di Giulio v Migliore, 258 AD2d 903, 903-904 [1999]).
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 timein his reply papers, however, and it therefore was not properly before the court (see New Yorkers for ConstitutionalFreedoms v New York State Senate, 98 AD3d 285 [2012]; Watts v Champion Home Bldrs. Co.,15 AD3d 850, 851 [2005]). In any event, we conclude that plaintiff's contention is withoutmerit.
Exxon contends on its appeal that the court erred in determining that Exxon was not coveredby the indemnification agreement between Hughes and Atlanta and thus erred in granting thatpart of Atlanta's cross motion for summary judgment dismissing the third-party complaint withrespect to contractual indemnification. We reject that contention. The agreement between Hughesand Atlanta expressly negated any intent to indemnify third-party beneficiaries, including Exxon(see Mid-Valley Oil Co., Inc. v HughesNetwork Sys., Inc., 54 AD3d 394, 396 [2008], lv dismissed in part and denied in part12 NY3d 881 [2009]; see alsoMendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786-787 [2006]).Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.