Opinion
02-25-2016
Fernando Espinal LOPEZ, et al., Plaintiffs–Respondents, v. LA FONDA BORICUA, INC., et al., Defendants, Maygina Realty LLC, Defendant–Appellant.
Rafter and Associates PLLC, New York (Howard K. Fishman of counsel), for appellant. The Altman Law Firm, PLLC, New York (Michael T. Altman of counsel), for respondents.
Rafter and Associates PLLC, New York (Howard K. Fishman of counsel), for appellant.
The Altman Law Firm, PLLC, New York (Michael T. Altman of counsel), for respondents.
MAZZARELLI, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 8, 2014, which, insofar as appealed from as limited by the brief, denied defendant Maygina Realty LLC's motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) and lost earnings claims as against it, unanimously modified, on the law, to grant the motion as to the § 241(6) claims, and otherwise affirmed, without costs.
Defendant failed to establish prima facie, with respect to the Labor Law § 240(1) claim, that the injured plaintiff was not an "employee" but a "volunteer" within the meaning of the Labor Law, notwithstanding that his employer may have agreed to perform the work at the restaurant gratuitously (see Daniello v. Holy Name Church, 286 A.D.2d 268, 269, 730 N.Y.S.2d 56 [1st Dept.2001] ; see generally Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 419 N.Y.S.2d 959, 393 N.E.2d 1032 [1979] ). Nor did defendant establish that plaintiff was merely cleaning, rather than performing renovation work within the meaning of the Labor Law, or that he was the sole proximate cause of the accident because of the alleged misuse of the ladder (compare Maloney v. J.W. Pfeil & Co., Inc., 84 A.D.3d 1632, 1633, 924 N.Y.S.2d 586 [3d Dept.2011] ).
The Labor Law § 241(6) claim should be dismissed. Three of the provisions upon which plaintiffs rely, relating to ladder maintenance, are inapplicable to the facts of this case (see Industrial Code [12 NYCRR] § 23–1.21 [b][1], [b][3][ii], [b][8] ), since there is no evidence that the ladder was incapable of supporting four times the maximum load, and the injured plaintiff testified that the ladder he used had locking braces, which he claimed he properly opened every time he set up the ladder. The remaining provision (12 NYCRR 23–1.21 [e][2] ) is not sufficiently specific to support a Labor Law § 241(6) claim (see Croussett v. Chen, 102 A.D.3d 448, 958 N.Y.S.2d 105 [1st Dept.2013] ; Spenard v. Gregware Gen. Contr., 248 A.D.2d 868, 871, 669 N.Y.S.2d 772 [3d Dept.1998] ).
As to the lost earnings claim, defendant failed to submit documentary evidence that the injured plaintiff had no income before the accident (see Dmytryszyn v. Herschman, 98 A.D.3d 715, 716, 950 N.Y.S.2d 401 [2d Dept.2012] ; Deans v. Jamaica Hosp. Med. Ctr., 64 A.D.3d 742, 744, 883 N.Y.S.2d 580 [2d Dept.2009] ).