November 15, 1991
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.
Appeal from order insofar as it denied preclusion unanimously dismissed (see, Loafin' Tree Rest. v. Pardi [appeal No. 1], 162 A.D.2d 985) and otherwise order reversed on the law without costs and motion granted. Memorandum: Supreme Court erred by denying defendant's motion for partial summary judgment dismissing plaintiff's claim pursuant to Labor Law § 240 (1) and by granting plaintiff's cross motion to amend his bill of particulars to allege a violation of section 200 Lab. of the Labor Law. Plaintiff, a florist who had been hired by a member to decorate a room in defendant country club for a private party, was injured when he fell from a stepladder while hanging streamers from the ceiling. We conclude that the activity in which plaintiff was engaged, hanging streamers, is not a protected activity within the purview of the Labor Law (cf., Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 815; Neville v. Deters, 175 A.D.2d 597; Ferrari v. Niasher Realty, 175 A.D.2d 591; Dedario v. New York Tel. Co., 162 A.D.2d 1001). We cannot agree with plaintiff's argument that hanging streamers for a party is the alteration of a building or structure sufficient to invoke the protection of the Labor Law (see generally, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577).
Supreme Court correctly held that plaintiff's counsel did not violate Code of Professional Responsibility DR 7-104 (A) (1) by informally interviewing a maintenance person employed by defendant (see, Niesig v. Team I, 76 N.Y.2d 363, 374). Consequently, upon reargument, defendant's motion for preclusion of the employee's statement and testimony was properly denied.