Alvira v. Residential Management

Appellate Division of the Supreme Court of New York

Alvira v. Residential Management

89 A.D.3d 437, 931 N.Y.2d 862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 1, 2011

StatusPublished

This text of 89 A.D.3d 437 (Alvira v. Residential Management) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alvira v. Residential Management, 89 A.D.3d 437, 931 N.Y.2d 862 (N.Y. Ct. App. 2011).

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Opinion

The court did not improvidently exercise its discretion by granting plaintiffs motion for renewal in light of “the strong public policy in favor of resolving cases on the merits” (Acosta v State of New York, 270 AD2d 164, 165 [2000]; see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [2007]). However, upon renewal, the court erred in granting defendant’s motion for summary judgment dismissing the complaint in its entirety. Triable issues of fact exist as to whether plaintiff was defendant’s special employee (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]; Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]).

On this record, plaintiff was not entitled to summary judgment on the issue of defendant’s liability under Labor Law § 240. In addition to the special employee issue, there is a triable issue as to whether plaintiff was engaged in cleaning when he fell from a ladder. Concur — Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ.

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The court did not improvidently exercise its discretion by granting plaintiffs motion for renewal in light of “the strong public policy in favor of resolving cases on the merits” (Acosta v State of New York, 270 AD2d 164, 165 [2000]; see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [2007]). However, upon renewal, the court erred in granting defendant’s motion for summary judgment dismissing the complaint in its entirety. Triable issues of fact exist as to whether plaintiff was defendant’s special employee (see Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 359 [2007]; Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991]).

On this record, plaintiff was not entitled to summary judgment on the issue of defendant’s liability under Labor Law § 240. In addition to the special employee issue, there is a triable issue as to whether plaintiff was engaged in cleaning when he fell from a ladder. Concur — Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ.

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Bluebook (online)

89 A.D.3d 437, 931 N.Y.2d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alvira-v-residential-management-nyappdiv-2011.

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