| Bastidas v Epic Realty, LLC |
| 2008 NY Slip Op 00637 [47 AD3d 861] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Ruben Bastidas, Respondent, v Epic Realty, LLC, et al.,Appellants. |
—[*1] The Breakstone Law Firm, P.C., Bellmore, N.Y. (Jay L.T. Breakstone and Jack A.Yankowitz of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedNovember 29, 2006, as denied that branch of their motion which was for summary judgmentdismissing the plaintiff's cause of action alleging a violation of Labor Law § 240 (1).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when he fell from a ladder while plastering walls in anapartment building owned by the defendant Epic Realty, LLC (hereinafter Epic), and managed bythe defendant Pine Management, Inc. (hereinafter Pine). A building superintendent employed byPine was the tenant of the subject apartment and was renovating it with the help of anothersuperintendent employed by Pine.
The defendants established, prima facie, their entitlement to judgment as a matter of law onthe Labor Law § 240 (1) cause of action with evidence that the vice president of Pine, whoalso was a principal of Epic, did not hire the plaintiff, who arrived at the premises unexpectedlyand was allowed to work with the mere expectation of payment from one of Pine'ssuperintendents (see Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971[1979]; Passante v Peck & SanderProps., LLC, 33 AD3d 980 [2006]). In opposition, the plaintiff raised a triable issue offact by submitting evidence that the defendants had authorized Pine's superintendents to carry outthe renovation [*2]project and that the plaintiff accepted the jobunder an implied agreement to be paid by the superintendent who had informed him of theproject, and for whom the plaintiff had previously worked (see Gordon v Eastern Ry.Supply, 82 NY2d 555, 560 [1993]; Pineda v 79 Barrow St. Owners Corp., 297 AD2d634 [2002]; cf. Abbatiello v LancasterStudio Assoc., 3 NY3d 46, 51 [2004]; Sanatass v Consolidated Inv. Co., Inc., 38 AD3d 332 [2007]).Accordingly, the Supreme Court properly denied that branch of the defendants' motion whichwas for summary judgment dismissing the cause of action under Labor Law § 240 (1).Spolzino, J.P., Ritter, Miller and Dickerson, JJ., concur.