Gonzalez v. 310 West 38th, L.L.C.

Jan 27, 2005
Versions:14 A.D.3d 464
788 N.Y.S.2d 384
2005 N.Y. App. Div. LEXIS 589

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 16, 2003, which, in an action by a laborer for personal injuries sustained when he fell from a ladder, insofar as appealed from as limited by the briefs, denied defendant-appellant‘s motion for summary judgment dismissing plaintiff‘s cause of action under Labor Law § 240 (1) as against it, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered April 23, 2004, which, insofar as appealed from, deemed appellant‘s motion to renew and reargue to be one for reargument only, and so considered, denied the motion, unanimously dismissed, without costs, as taken from a nonappealable order.

Appellant‘s argument that it is the alter ego of plaintiff‘s employer, and that the Workers’ Compensation Law therefore bars the action as against it, was correctly rejected by the motion court on the ground that the record fails to demonstrate that plaintiff‘s employer exercised complete domination and control over appellant‘s everyday operations (see Allen v Oberdorfer Foundries, 192 AD2d 1077 [1993]; Cruz v HSS Props. Corp., 309 AD2d 720 [2003]). However, the record does conclusively demonstrate that plaintiff was engaged in the painting of a building when injured, and that he is therefore protected by Labor Law § 240 (1). We have considered appellant‘s other arguments and find them unavailing. Concur—Andrias, J.P., Saxe, Ellerin, Sweeny and Catterson, JJ.