In Vera v. Low Income Mktg. Corp., 2016 NY Slip Op 08318 (App. Div. 1st Dept. Dec. 13, 2016), a personal injury/construction accident case, the court explained its decision to grant plaintiff’s, and deny defendant’s, motion for summary judgment. At issue was plaintiff’s status. From the decision:
The motion court properly granted plaintiffs’ motion for partial summary judgment on their Labor Law § 240(1) claim as against defendant owner LIMC, and properly denied LIMC’s motion for summary judgment dismissing the Labor Law § 88, § 240(1), and § 241(6) claims as against it. The finding of the Workers’ Compensation Board that plaintiff Claudio Vera was not an “employee” of the general contractor is not entitled to preclusive effect. Plaintiff has established that he was “employed” within the meaning of the Labor Law, i.e., he was suffered and permitted to work at the job site, entitling him to partial summary judgment on the issue of liability on the section 240(1) claim. …
In addition, the WCB made no determination that plaintiff was in any way a “volunteer” at the site. …
Plaintiff submitted evidence demonstrating that his company was hired by NY Fast to supply containers and that plaintiff was properly at the work site. He testified that he had an agreement with a principal of NY Fast to help load the dumpsters and that he received compensation for doing so. The dissent complains that plaintiff’s submissions do not include an affidavit from the NY Fast foreman. However, plaintiff’s testimony on the issue is not hearsay and was uncontroverted.
A contractor properly on the site to off-load dumpsters cannot be characterized as a “volunteer.” The NY Fast foreman unlocked the street-level entrance door in order to permit plaintiff entry. From there, plaintiff proceeded to a second-floor scaffold where he helped other workers load debris into a container. The NY Fast foreman instructed plaintiff concerning which materials to place in the dumpster, and of course, plaintiff was atop the scaffold at the time of the accident, refuting any suggestion that plaintiff was somehow unauthorized or a volunteer.