Lamberson v. Chen

Appellate Division of the Supreme Court of New York

Lamberson v. Chen

141 A.D.2d 422, 529 N.Y.S.2d 501, 1988 N.Y. App. Div. LEXIS 6966

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

DecidedJune 23, 1988

StatusPublished

Cited by3 cases

This text of 141 A.D.2d 422 (Lamberson v. Chen) 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

Lamberson v. Chen, 141 A.D.2d 422, 529 N.Y.S.2d 501, 1988 N.Y. App. Div. LEXIS 6966 (N.Y. Ct. App. 1988).

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Opinion

Order, Supreme Court, New York County (Martin Evans, J.), entered June 5, 1987, which denied defendants-appellants’ motion for summary judgment, unanimously modified, on the law, to grant partial summary judgment dismissing the third and fourth causes of action, alleging violations of Labor Law §§ 200, 240 and 241, and as so modified, the order is affirmed, without costs.

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 NY2d 970, 971; see also, Alver v Duarte, 80 AD2d 182; Yearke v Zarcone, 57 NY2d 457, lv denied 43 NY2d 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 AD2d 928, 929, affd 55 NY2d 844.) The acts of plaintiff are those of a volunteer and, therefore, are not within the scope of activities [423]*423designed to be protected by the labor laws. Concur — Kupferman, J. P., Ross, Carro, Rosenberger and Smith, JJ.

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Order, Supreme Court, New York County (Martin Evans, J.), entered June 5, 1987, which denied defendants-appellants’ motion for summary judgment, unanimously modified, on the law, to grant partial summary judgment dismissing the third and fourth causes of action, alleging violations of Labor Law §§ 200, 240 and 241, and as so modified, the order is affirmed, without costs.

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 NY2d 970, 971; see also, Alver v Duarte, 80 AD2d 182; Yearke v Zarcone, 57 NY2d 457, lv denied 43 NY2d 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 AD2d 928, 929, affd 55 NY2d 844.) The acts of plaintiff are those of a volunteer and, therefore, are not within the scope of activities [423]*423designed to be protected by the labor laws. Concur — Kupferman, J. P., Ross, Carro, Rosenberger and Smith, JJ.

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Bluebook (online)

141 A.D.2d 422, 529 N.Y.S.2d 501, 1988 N.Y. App. Div. LEXIS 6966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamberson-v-chen-nyappdiv-1988.

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