Smith v. Girls Club of N.Y.

Full title: Mark A. SMITH, Plaintiff–Appellant, v. The GIRLS CLUB OF NEW YORK…

Court: Supreme Court, Appellate Term, New York, First Department.

Date published: Dec 11, 2012

37 Misc. 3d 139 (N.Y. App. Div. 2012)

2012 N.Y. Slip Op. 52238

964 N.Y.S.2d 63

Opinion

No. 570657/12.

2012-12-11

Mark A. SMITH, Plaintiff–Appellant, v. The GIRLS CLUB OF NEW YORK, Defendant–Respondent.

PER CURIAM.

Plaintiff, as limited by his brief, appeals from (1) an order of the Civil Court of the City of New York, Bronx County (Irving Rosen, JHO), entered June 16, 2009, which denied his motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim; and (2) that portion of an order (same court and JHO), entered May 19, 2010, which, upon renewal, adhered to the prior determination.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.

PER CURIAM.

Orders (Irving Rosen, JHO), entered June 16, 2009 and May 19, 2010, affirmed, without costs.

We sustain the denial of plaintiff's motion for partial summary judgment on his (unpleaded) Labor Law § 240(1) claim, in the absence of a conclusive showing that plaintiff was an “employee” entitled to the special protections of the statute at the time of the alleged accident ( see Stringer v. Musacchia, 11 NY3d 212 [2008];Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573 [1990];Pigott v. State of New York, 199 A.D.2d 734 [1993] ).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.