Melendez v. Abanno Building Maintenance, Inc.

Appellate Division of the Supreme Court of New York

Melendez v. Abanno Building Maintenance, Inc.

17 A.D.3d 147, 791 N.Y.S.2d 831, 2005 N.Y. App. Div. LEXIS 3636

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

DecidedApril 7, 2005

StatusPublished

This text of 17 A.D.3d 147 (Melendez v. Abanno Building Maintenance, Inc.) 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

Melendez v. Abanno Building Maintenance, Inc., 17 A.D.3d 147, 791 N.Y.S.2d 831, 2005 N.Y. App. Div. LEXIS 3636 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about November 1, 2004, which denied defendants’ motion for partial summary judgment dismissing plaintiffs’ Labor Law §§ 200, 240 (1) and § 241 (6) claims and plaintiffs’ cross motion for partial summary judgment on their Labor Law § 240 (1) claim, unanimously modified, on the law, to grant plaintiffs’ cross motion, and otherwise affirmed, without costs, and the matter remanded for further proceedings.

Plaintiffs’ cross motion was opposed and denied upon the singular ground that there was a question of fact as to whether plaintiff at the time of his accident was acting in a capacity entitling him to the protection of Labor Law § 240 (1). Our review of the record, however, discloses that defendants essentially admitted in their answer that on the occasion in question plaintiff was in fact performing an inspection integral to the progress of an ongoing construction project (see Campisi v Epos Contr. Corp., 299 AD2d 4 [2002]; Aubrecht v Acme Elec. Corp., 262 AD2d 994 [1999]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.

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Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about November 1, 2004, which denied defendants’ motion for partial summary judgment dismissing plaintiffs’ Labor Law §§ 200, 240 (1) and § 241 (6) claims and plaintiffs’ cross motion for partial summary judgment on their Labor Law § 240 (1) claim, unanimously modified, on the law, to grant plaintiffs’ cross motion, and otherwise affirmed, without costs, and the matter remanded for further proceedings.

Plaintiffs’ cross motion was opposed and denied upon the singular ground that there was a question of fact as to whether plaintiff at the time of his accident was acting in a capacity entitling him to the protection of Labor Law § 240 (1). Our review of the record, however, discloses that defendants essentially admitted in their answer that on the occasion in question plaintiff was in fact performing an inspection integral to the progress of an ongoing construction project (see Campisi v Epos Contr. Corp., 299 AD2d 4 [2002]; Aubrecht v Acme Elec. Corp., 262 AD2d 994 [1999]).

We have considered defendants’ remaining arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.

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Bluebook (online)

17 A.D.3d 147, 791 N.Y.S.2d 831, 2005 N.Y. App. Div. LEXIS 3636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melendez-v-abanno-building-maintenance-inc-nyappdiv-2005.

Opinion

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