Opinion
11113 Index 36410/17E
02-25-2020
Felipe REYES, Plaintiff–Respondent–Appellant, v. The ROMAN CATHOLIC CHURCH OF ST. RAYMOND doing business as St. Raymond Academy for Girls, Defendant-Appellant-Respondent. The Roman Catholic Church of St. Raymond doing business as St. Raymond Academy for Girls, Third-Party Plaintiff-Appellant-Respondent, v. ABM Janitorial Services-Northeast, Inc., Third-Party Defendant-Respondent.
Rivkin Radler LLP, Uniondale (J'Naia L. Boyd of counsel), for appellant-respondent. Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent-appellant. Jeffrey Samel & Partners, New York (Robert G. Spevack of counsel), for respondent.
Rivkin Radler LLP, Uniondale (J'Naia L. Boyd of counsel), for appellant-respondent.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent-appellant.
Jeffrey Samel & Partners, New York (Robert G. Spevack of counsel), for respondent.
Friedman, J.P., Richter, Webber, Singh, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 8, 2019, which, to the extent appealed from as limited by the briefs, granted the part of defendant The Roman Catholic Church of St. Raymond (St. Raymond)'s motion seeking summary judgment dismissing the Labor Law § 240(1) claim and denied the part seeking summary judgment on the third-party contractual indemnification claim, unanimously affirmed, without costs.
The evidence demonstrates that plaintiff was St. Raymond's special employee. Although plaintiff was employed by third-party defendant ABM Janitorial Services–Northeast, Inc. (ABM), St. Raymond's facilities manager supervised, directed and controlled plaintiff's work, and his work was completed solely for the benefit of St. Raymond (see Vincente v. Silverstein Props., Inc., 83 A.D.3d 586, 587, 922 N.Y.S.2d 45 [1st Dept. 2011], lv denied 17 N.Y.3d 710, 2011 WL 4089924 [2011] ). Accordingly, plaintiff's claim against St. Raymond is barred by Workers' Compensation Law § 29(6) (see Villanueva v. Southeast Grand St. Guild Hous. Dev. Fund Co., Inc. , 37 A.D.3d 155, 157, 829 N.Y.S.2d 459 [1st Dept. 2007] ).
The court properly denied St. Raymond's motion for summary judgment on the third-party indemnification claim. An issue of fact remains as to whether plaintiff's injury was caused by the negligence, misconduct or other fault of ABM, its agents or employees, as required by the indemnification provision of the contract.
We have considered the parties' remaining arguments and find them unavailing.