KOPP v. FLAGG PROPERTIES

ORDERED that on the appeal of the defendant Complete Interiors, Inc., the judgment is reversed, on the law, and the complaint is dismissed in its entirety; and it is further,

ORDERED that the cross appeal by the plaintiffs is dismissed as academic; and it is further,

ORDERED that one bill of costs is awarded to the defendant Complete Interiors, Inc., payable by the plaintiffs.

The plaintiff Deborah Kopp (hereinafter the plaintiff) was injured when she tripped and fell over a shovel allegedly left behind by the defendant Complete Interiors, Inc., which was the subcontractor working on a renovation of the Genovese Drug Store (hereinafter Genovese) in Huntington Station. The plaintiff was employed by Genovese as a cosmetics coordinator and, at the time of the accident, was setting up the cosmetic department and restocking merchandise in preparation for the store's re-opening to the general public.

Contrary to the plaintiff's argument, the evidence fails to establish that her work involved making a significant physical change to the configuration or composition of the building or structure as to qualify as an alteration under Labor Law § 241(6) and 12 NYCRR 23-1.4(b) (see Joblon v. Solow, 91 N.Y.2d 457; Luthi v. Long Is. Resource Corp., 251 A.D.2d 554; Agli v. Turner Constr. Co., 246 A.D.2d 16).

The evidence does not demonstrate that the plaintiff was employed for the purpose of performing construction or repairs (see Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573; Gibson v. Worthington Div. of McGraw-Edison Co., 78 N.Y.2d 1108; Petermann v. Ampal Realty Corp., 288 A.D.2d 54; Valinoti v. Sandvik Seamco, 246 A.D.2d 344).

Consequently, since the plaintiff did not belong to the class of workers protected by the Labor Law, the complaint must be dismissed.

In light of our determination on the appeal, the cross appeal has been rendered academic.

SANTUCCI, J.P., O'BRIEN, GOLDSTEIN and COZIER, JJ., concur.