9703. EDWARD BODTMAN, plf-res, v. LIVING MANOR LOVE, INC. def-ap, MOTEL MANAGEMENT CORP., ETC., def — Kafko Schnitzer, LLP, Bronx (Neil R. Kafko of counsel), for Living Manor Love, Inc., ap — Gordon & Silber, P.C., New York (Andrew B. Kaufman of counsel), for RM Farm Real Estate Inc. and Gina Molinet, ap — Reed S. Grossman, Brooklyn (Richard Galeota of counsel), for res — Order, Supreme Court, New York County (Louis B. York, J.), entered February 23, 2012, which, insofar as appealed from as limited by the briefs, denied the motion of defendant RM Farm Real Estate Inc. (RM Farm) and the cross motion of defendant Living Manor Love, Inc. (Living Manor) for summary judgment dismissing the Labor Law §240 and §200 and commonlaw negligence claims as against them, unanimously reversed, on the law, without costs, and the motion and cross motion granted. The Clerk is directed to enter judgment in favor of RM Farm and Living Manor dismissing the complaint as against them.
Dismissal of the Labor Law §240(1) claim is warranted since plaintiff’s work was outside the scope of activity protected by the statute. Plaintiff testified that on the day of the accident, he was to drill several holes in the roof of a motel in order to attach a temporary sign. After ascending to the motel’s roof, but prior to performing such work, plaintiff slipped off the roof and fell to the ground. The record demonstrates that the work plaintiff was to perform would have entailed making only a slight change to the building by drilling a few holes in the roof and did not constitute “altering” for the purposes of Labor Law §240(1) (see Munoz v. DJZ Realty, LLC, 5 NY3d 747 [2005]; Joblon v. Solow, 91 NY2d 457, 465 [1998]; Della Croce v. City of New York, 297 AD2d 257 [1st Dept 2002]). Although RM Farm raised this argument for the first time in its reply affirmation in support of its motion, the issue was sufficiently raised by Living Manor in support of its cross motion. Moreover, contrary to the motion court’s finding that its prior denial of a motion to dismiss pursuant to CPLR 3211 precluded it from considering this issue, the prior ruling did not constitute law of the case, given the difference in procedural posture (see Moses v. Savedoff, 96 AD3d 466, 468 [1st Dept 2012]).
