        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

944
CA 11-02542
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


MOSTAFA ZOLFAGHARI, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

HUGHES NETWORK SYSTEMS, LLC, EXXON MOBIL
CORPORATION AND RTE A SETAUKET REALTY,
DEFENDANTS-RESPONDENTS.
------------------------------------------
EXXON MOBIL CORPORATION, THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

ATLANTA NETWORK SYSTEMS, INC., THIRD-PARTY
DEFENDANT-RESPONDENT.


KENNY & KENNY, PLLC, SYRACUSE (MICHAEL P. KENNY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MENDES & MOUNT, LLP, NEWARK, NEW JERSEY (WILLIAM T. WACHENFELD OF
COUNSEL), FOR DEFENDANT-RESPONDENT EXXON MOBIL CORPORATION AND THIRD-
PARTY PLAINTIFF-APPELLANT.

HURWITZ & FINE, P.C., BUFFALO (DAVID R. ADAMS OF COUNSEL), FOR
DEFENDANT-RESPONDENT HUGHES NETWORK SYSTEMS, LLC AND THIRD-PARTY
DEFENDANT-RESPONDENT.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (JENNIFER L. WANG OF
COUNSEL), FOR DEFENDANT-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 and judgment denied
plaintiff’s motion for partial summary judgment, granted defendants’
cross motions for summary judgment, dismissed the complaint, denied
the motion of third-party plaintiff for summary judgment and granted
the cross motion of third-party defendant for summary judgment
dismissing the third-party complaint of Exxon Mobil Corporation.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries he allegedly sustained
                                 -2-                           944
                                                         CA 11-02542

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 plaintiff’s 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.

     We note at the outset that plaintiff, as limited by his brief on
appeal, contends only that the court erred in granting those parts of
the cross motions for summary judgment dismissing the causes of action
pursuant to Labor Law §§ 240 (1) and 241 (6). Plaintiff contends with
respect to Labor Law § 240 (1) that he was engaged in the “alteration”
of a building or structure within the meaning of that section. We
reject that contention. To obtain the protections afforded by Labor
Law § 240 (1), a worker must be engaged in “altering” a building or
structure, i.e., “making a significant physical change to the
configuration or composition of the building or structure” (Joblon v
Solow, 91 NY2d 457, 465).

     Here, plaintiff’s 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, plaintiff’s 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;
Maes v 408 W. 39 LLC, 24 AD3d 298, 299-300, lv denied 7 NY3d 716;
Anderson v Schwartz, 24 AD3d 234, 234, lv denied 7 NY3d 707).
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 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, lv denied 100 NY2d 502; Di Giulio v Migliore, 258 AD2d
903, 903-904).

     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 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,
                                 -3-                           944
                                                         CA 11-02542

___ AD3d ___, ___ [July 6, 2012]; Watts v Champion Home Bldrs. Co., 15
AD3d 850, 851). In any event, we conclude that plaintiff’s 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 between Hughes and Atlanta expressly
negated any intent to indemnify third-party beneficiaries, including
Exxon (see Mid-Valley Oil Co., Inc. v Hughes Network Sys., Inc., 54
AD3d 394, 396, lv dismissed in part and denied in part 12 NY3d 881;
see also Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786-787).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
