Hernandez v. High Rise Bldg. & Design, Inc.

210 A.D.3d 659

177 N.Y.S.3d 667

Jesus Antonio HERNANDEZ, et al., respondents,

v.HIGH RISE BUILDING & DESIGN, INC., et al., appellants, et al., defendant.

2019–13583

Index No. 514076/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 23, 2022

November 2, 2022

Spar & Bernstein, P.C. (The Leyvi Law Group, P.C., Brooklyn, NY [Maksim Leyvi ], of counsel), for appellants.

Elefterakis, Elefterakis & Panek, New York, NY (Eileen Kaplan of counsel), for respondents.

BETSY BARROS, J.P., JOSEPH A. ZAYAS, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants High Rise Building & Design, Inc., and J.J.B. Retail Corp. appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated November 6, 2019. The order denied the motion of the defendant J.J.B. Retail Corp. for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the appeal by the defendant High Rise Building & Design, Inc., is dismissed, as that defendant is not aggrieved by the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is affirmed on the appeal by the defendant J.J.B. Retail Corp.; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs, Jesus Antonio Hernandez (hereinafter Hernandez), and his wife suing derivatively, allege that, on May 24, 2017, Hernandez was injured when he fell from a scaffold while performing sheet rock installation at a construction site owned by the defendant J.J.B. Retail Corp. (hereinafter JJB Retail), which had retained the defendants High Rise Building & Design, Inc. (hereinafter High Rise), and SSG Group, Inc., to renovate the premises. The plaintiffs also allege that Hernandez was hired to work on the project by a High Rise employee, who paid Hernandez weekly in cash, and supervised his work for approximately one month before the accident.

The plaintiffs commenced this action against the defendants, alleging, inter alia, that they violated Labor Law §§ 200, 240 and 241. Issue was joined only by JJB Retail, which subsequently moved for summary judgment dismissing the complaint insofar as asserted against it. By order dated November 6, 2019, the Supreme Court denied JJB Retail's motion. JJB Retail appeals.

The Supreme Court properly denied JJB Retail's motion for summary judgment dismissing the complaint insofar as asserted against it. JJB Retail moved for summary judgment on the grounds that Hernandez was not an employee within the meaning of the Labor Law, he was not present at the construction site on the May 24, 2017 date of the alleged accident, and no accident occurred on that day.

"[I]n order to invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents, 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" ( Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576–577, 561 N.Y.S.2d 892, 563 N.E.2d 263 [citations and internal quotation marks omitted]; see Daeira v. Genting N.Y., LLC, 173 A.D.3d 831, 834, 102 N.Y.S.3d 724 ).

JJB Retail bore the prima facie burden of affirmatively establishing its entitlement to judgment as a matter of law (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308 ). In support of the motion, JJB Retail submitted, inter alia, affidavits from the supervisors for High Rise and the nonparty electrical...