| Cromwell v Hess |
| 2009 NY Slip Op 04628 [63 AD3d 1651] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Dennis R. Cromwell et al., Appellants-Respondents, v Kenneth E.Hess et al., Respondents-Appellants. |
—[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Wendy A. Scott of counsel), fordefendants-respondents-appellants.
Appeal and cross appeal from an order of the Supreme Court, Erie County (Joseph R.Glownia, J.), entered January 3, 2008 in a personal injury action. The order denied plaintiffs'motion for partial summary judgment and defendants' cross motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this Labor Law and common-law negligence actionseeking damages for injuries sustained by Dennis R. Cromwell (plaintiff) when he fell from aladder while attaching siding to rental property owned by defendants. Plaintiffs appeal anddefendants cross-appeal from an order denying plaintiffs' motion for partial summary judgmenton liability with respect to the Labor Law § 240 (1) claim and denying defendants' crossmotion for summary judgment dismissing the complaint. We affirm. To be entitled to theprotection of Labor Law § 240 (1), a plaintiff must "demonstrate that he [or she] was bothpermitted or suffered to work on a building or structure and that he [or she] was hired bysomeone, be it [the] owner, contractor or their agent" (Stringer v Musacchia, 11 NY3d 212, 215 [2008] [internalquotation marks omitted]; see Whelen v Warwick Val. Civic & Social Club, 47 NY2d970 [1979]). It is well established that Labor Law § 240 (1) does not afford protection tovolunteers (see Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577 [1990];Whelen, 47 NY2d 970 [1979]; Fuller v Spiesz, 53 AD3d 1093, 1094 [2008]), and here there is anissue of fact whether there was an agreement pursuant to which plaintiff was to perform a servicein return for compensation, thus rendering him an employee rather than a volunteer (seeStringer, 11 NY3d at 215-216). Contrary to the further contention of defendants, SupremeCourt properly denied those parts of their cross motion for summary judgment dismissing theLabor Law § 200 claim and common-law negligence cause of action. Even assuming,arguendo, that defendants met their initial burden by establishing that they did not supervise orcontrol plaintiff's work and that they lacked actual notice of the alleged dangerous condition, weconclude that they failed to establish that they lacked constructive notice of that allegedcondition (see generally Fuller, 53 AD3d at 1095). Present—Scudder, P.J.,Hurlbutt, Martoche, Smith and Centra, JJ.