Opinion
2011-11-1
Hector ALVIRA, Plaintiff–Appellant,v.RESIDENTIAL MANAGEMENT, Defendant–Respondent.
Edelstein & Grossman, New York (Jonathan I. Edelstein of counsel), for appellant.*863 Fischetti & Pesce, LLP, Garden City (John E. McLoughlin of counsel), for respondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered November 19, 2010, which, upon renewal, granted defendant's motion for summary judgment dismissing the complaint in its entirety and denied plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously modified, on the law, to deny defendant's motion for summary judgment, and otherwise affirmed, without costs.
The court did not improvidently exercise its discretion by granting plaintiff's 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 A.D.2d 164, 165, 704 N.Y.S.2d 594 [2000]; see Rancho Santa Fe Assn. v. Dolan King, 36 A.D.3d 460, 461, 829 N.Y.S.2d 39 [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 N.Y.3d 351, 359, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007]; Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 [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.
FRIEDMAN, J.P., CATTERSON, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ., concur.