Summary
In Whelen v. Warwick Val. Civic Social Club (47 N.Y.2d 970, 971), the Court of Appeals held that [t]o come within the special class for whose benefit absolute liability is imposed upon contractors, owners and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent.
Summary of this case from Daniello v. Holy Name ChurchOpinion
Argued June 6, 1979
Decided July 9, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EDWARD M. O'GORMAN, J.
Harry V. Lynch and Thomas N. O'Hara for appellants.
Alfred Schleider and Edgar T. Schleider for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Although the Labor Law defines an individual "employed" as including one who is "permitted or suffered to work" (§ 2, subd 7), this definition must be read in conjunction with that of "employee", which is defined as "a mechanic, workingman or laborer working for another for hire" (§ 2, subd 5) (emphasis added). To come within the special class for whose benefit absolute liability is imposed upon contractors, owners and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent. A volunteer who offers his services gratuitously cannot claim the protection afforded by the "flat and unvarying duty" flowing to this special class contained in section 240. (Yearke v Zarcone, 57 A.D.2d 457, 459, mot for lv to app den 43 N.Y.2d 643.)
Chief Judge COOKE, and Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER concur in memorandum; Judge FUCHSBERG taking no part.
Order affirmed.