Zolfaghari v. Hughes Network Systems, LLC

Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he allegedly sustained when he fell off a ladder while trying to 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 in the process of changing from an Exxon station to a Gulf station, and the satellite dish was owned by defendant Exxon Mobil Corporation (Exxon). Exxon had contracted with defendant Hughes Network 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 from Setauket’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 and Hughes. Supreme Court denied plaintiffs motion for partial summary judgment on liability under Labor Law §§ 240 (1) and 241 (6), granted the cross motion of Exxon and those parts of the cross motions of Setauket, as well as Atlanta and Hughes, for summary judgment dismissing the complaint in the main action, and granted Atlanta’s cross motion for summary judgment dismissing the third-party complaint.

Here, plaintiffs task involved no more than manually unplugging a cord, loosening a small number of bolts by hand and with a wrench, cutting a wire with a hand tool, and lifting the dish apparatus from a bracket and face plate that remained attached to the building. That work did not require plaintiff to come in physical contact with the building itself, involved no power tools, no drilling of holes, and no feeding of wire through conduits. In short, plaintiffs work did not require 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], lv denied 7 NY3d 716 [2006]; Anderson v Schwartz, 24 AD3d 234 , 234 [2005], lv denied 7 NY3d 707 [2006]). Contrary to plaintiffs 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 of such a system within the context of Labor Law § 240 (1) (see e.g. Tassone v Mid-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. Plaintiffs contention was raised for the first time in his reply papers, however, and it therefore was not properly before the court (see New Yorkers for Constitutional Freedoms 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 plaintiffs contention is without merit.

Exxon contends on its appeal that the court erred in determining that Exxon was not covered by the indemnification agreement between Hughes and Atlanta and thus erred in granting that part of Atlanta’s cross motion for summary judgment dismissing the third-party complaint with respect to contractual indemnification. We reject that contention. The agreement be