Melendez v. Truffles II, LLC

2024 NY Slip Op 00810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 2024
• Docket: Index No. 27287/18 Appeal No. 1620 Case No. 2023-02959
• Status: Published

Opinion

Melendez v Truffles II, LLC (2024 NY Slip Op 00810)

Melendez v Truffles II, LLC

2024 NY Slip Op 00810

Decided on February 15, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 15, 2024
Before: Oing, J.P., González, Shulman, Pitt-Burke, Higgitt, JJ.

Index No. 27287/18 Appeal No. 1620 Case No. 2023-02959

[*1]Samuel Melendez, Plaintiff-Respondent,

v

Truffles II, LLC, Defendant-Appellant.

Mauro Lilling Naparty, LLP, Woodbury (Seth Wienberg of counsel), for appellant.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 30, 2023, which denied that portion of defendant's motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim, and which granted plaintiff's cross-motion for partial summary judgment on his Labor Law § 240(1) claim, unanimously modified, on the law, to deny plaintiff's cross-motion, and otherwise affirmed, without costs.

The protections of Labor Law § 240(1) are limited to the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." It was not established, as a matter of law, that plaintiff was performing covered work at the time of his accident. The proof submitted on the motion and cross-motion raised questions of fact as to the scope, regularity and complexity of the work in which plaintiff was engaged at the time of his accident, precluding the grant of summary relief in either party's favor (see Gopie v Mutual of Am. Life Ins. Co., 142 AD3d 820, 821 [1st Dept 2016]).

Accordingly, we modify Supreme Court's decision to deny plaintiff's motion for summary judgment on his Labor Law § 240(1) claim.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 15, 2024