Opinion
June 23, 1988
Appeal from the Supreme Court, New York County (Martin Evans, J.).
To be permitted to bring an action under Labor Law § 240, it is necessary that the plaintiff be in the employ, not that he or she merely has permission to be on the premises, and is performing an act that is such as might be done by one who is employed by the owner of the property. (Whelen v Warwick Val. Civic Social Club, 47 N.Y.2d 970, 971; see also, Alver v Duarte, 80 A.D.2d 182; Yearke v Zarcone, 57 N.Y.2d 457, lv denied 43 N.Y.2d 643.) The measuring of a roof to formulate a free estimate is insufficient, as a matter of law, to create an employer-employee relationship between the landowner and the estimating firm's agent. (Chabot v Baer, 82 A.D.2d 928, 929, affd 55 N.Y.2d 844.) The acts of plaintiff are those of a volunteer and, therefore, are not within the scope of activities designed to be protected by the labor laws.
Concur — Kupferman, J.P., Ross, Carro, Rosenberger and Smith, JJ.