Opinion
No. 1620 Index No. 27287/18 Case No. 2023-02959
02-15-2024
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.
Mauro Lilling Naparty, LLP, Woodbury (Seth Wienberg of counsel), for appellant.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent.
Before: Oing, J.P., González, Shulman, Pitt-Burke, Higgitt, JJ.
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 A.D.3d 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.