Downey v. Local 46 2nd Holding Co.

Appellate Division of the Supreme Court of New York

Downey v. Local 46 2nd Holding Co.

34 A.D.3d 318, 824 N.Y.S.2d 267

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

DecidedNovember 16, 2006

StatusPublished

This text of 34 A.D.3d 318 (Downey v. Local 46 2nd Holding Co.) 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.

Bluebook

Downey v. Local 46 2nd Holding Co., 34 A.D.3d 318, 824 N.Y.S.2d 267 (N.Y. Ct. App. 2006).

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Opinion

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered February 16, 2006, which denied plaintiffs motion for partial summary judgment as to liability under Labor Law § 240, and denied the cross motion of defendant Local 46 Second Holding Corporation, sued herein as Local 46 2nd Holding Company, for summary judgment on its cross claims for common-law and contractual indemnification, unanimously affirmed, with separate bills of cost in favor of defendants payable by plaintiff.

Recovery under the absolute liability provisions of Labor Law § 240 (1) requires a showing that the plaintiff “was hired by someone, be it owner, contractor or their agent” (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]). Questions of fact as to plaintiffs employment status preclude summaiy disposition.

Similarly, there is an issue of fact as to indemnification. The motion was premature, having been brought prior to the preliminary conference or the opportunity of the parties to conduct discovery (Bradley v Ibex Constr. LLC, 22 AD3d 380 [2005]).

We have considered the parties’ remaining arguments for affirmative relief and find them without merit. Concur—Buckley, EJ., Mazzarelli, Nardelli, Catterson and Malone, JJ.

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Order, Supreme Court, New York County (Harold B. Beeler, J.), entered February 16, 2006, which denied plaintiffs motion for partial summary judgment as to liability under Labor Law § 240, and denied the cross motion of defendant Local 46 Second Holding Corporation, sued herein as Local 46 2nd Holding Company, for summary judgment on its cross claims for common-law and contractual indemnification, unanimously affirmed, with separate bills of cost in favor of defendants payable by plaintiff.

Recovery under the absolute liability provisions of Labor Law § 240 (1) requires a showing that the plaintiff “was hired by someone, be it owner, contractor or their agent” (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]). Questions of fact as to plaintiffs employment status preclude summaiy disposition.

Similarly, there is an issue of fact as to indemnification. The motion was premature, having been brought prior to the preliminary conference or the opportunity of the parties to conduct discovery (Bradley v Ibex Constr. LLC, 22 AD3d 380 [2005]).

We have considered the parties’ remaining arguments for affirmative relief and find them without merit. Concur—Buckley, EJ., Mazzarelli, Nardelli, Catterson and Malone, JJ.

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Bluebook (online)

34 A.D.3d 318, 824 N.Y.S.2d 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downey-v-local-46-2nd-holding-co-nyappdiv-2006.

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