| Demaj v Pelham Realty, LLC |
| 2011 NY Slip Op 01891 [82 AD3d 531] |
| March 15, 2011 |
| Appellate Division, First Department |
| Vilson Demaj, Respondent, v Pelham Realty, LLC,Appellant. |
—[*1] Napoli Bern Ripka, LLP, New York (Denise A. Rubin of counsel), for respondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 17, 2010, whichdenied defendant's motion for summary judgment dismissing the complaint and grantedplaintiff's cross motion for summary judgment on the issue of liability on his Labor Law §240 (1) claim, unanimously affirmed, without costs.
It is undisputed that plaintiff, a superintendent's helper, was not directly employed bydefendant building owner. Defendant denied such a relationship at the Workers' CompensationBoard proceedings, during which nonparty JFA conceded that it employed plaintiff. However,the record contains no evidence establishing that plaintiff was defendant's special employee so asto entitle defendant to rely on the exclusive remedy provisions of the Workers' CompensationLaw (see Worker's Compensation Law §§ 11, 29 [6]; Cruz v Regent Leasing Ltd.Partnership, 39 AD3d 396 [2007]). Further, defendant failed to establish that it and JFAwere, for the purposes of the Workers' Compensation Law, alter egos (see Gonzalez v 310 W. 38th, L.L.C., 14AD3d 464 [2005]; compare Paulinov Lifecare Transp., 57 AD3d 319 [2008] [special employment relationship establishedwhere defendant and nonparty employer were operated under control of same parent corporation,shared payroll services and employee manual, and were covered by same workers' compensationinsurance policy]).
Plaintiff established prima facie that he was engaged in the painting and plastering of abuilding when injured because of a collapsing ladder and thus was entitled to summary judgmenton the issue of defendant's liability under Labor Law § 240 (1). In opposition, defendantfailed to raise an issue of fact whether plaintiff was a recalcitrant worker or the sole proximatecause of his injuries (see Stolt v General Foods Corp., 81 NY2d 918 [1993]; Torres v Monroe Coll., 12 AD3d261 [2004]; Garcia v 1122 E. 180th St. Corp., 250 AD2d 550 [1998]).Concur—Mazzarelli, J.P., Sweeny, DeGrasse and Freedman, Abdus-Salaam JJ.