Opinion
October 22, 1999
Appeal from Order of Supreme Court, Erie County, Notaro, J. — Renewal.
PRESENT: PINE, J. P., LAWTON, HAYES, WISNER AND SCUDDER, JJ.
Order unanimously reversed on the law without costs, motions granted and complaint against defendant Church of God in Christ WNY, Jurisdiction, II dismissed. Memorandum: Church of God in Christ WNY, Jurisdiction II (defendant) appeals from an order denying its motion to renew its prior motion for summary judgment. Even though defendant abandoned its appeal from an earlier order denying its motion for summary judgment and this appeal is subject to dismissal (see, Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750 [decided Oct. 14, 1999]; see also, Bray v. Cox, 38 N.Y.2d 350), we have discretion to entertain the appeal in a proper case (see, Faricelli v. TSS Seedman's, 94 N.Y.2d 722 [decided Oct. 14, 1999]; see also, Aridas v. Caserta, 41 N.Y.2d 1059, 1061). In a prior appeal by codefendant Crippen Heating Air Conditioning (Crippen), we held that Crippen was entitled to summary judgment dismissing the complaint against it because, inter alia, Ernest Bogenrieder (plaintiff) does not come within the special class of persons entitled to the protections of the Labor Law (Bogenrieder v. Crippen Heating Air Conditioning, 244 A.D.2d 995). Supreme Court should have granted defendant's motion for renewal and upon renewal granted prior motion of defendant for summary judgment dismissing the complaint against it. Plaintiff does not come within the special class of persons entitled to the protections of the Labor Law (see, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577; Bosse v. City of Hornell, 197 A.D.2d 893). With respect to the common-law negligence cause of action, plaintiffs failed to controvert proof submitted by defendant establishing that it had no actual or constructive notice of the alleged defect and that it did not control or supervise plaintiff's work (see, Di Giulio v. City of Buffalo, 237 A.D.2d 938; see also, Riley v. Stickl Constr. Co., 242 A.D.2d 936).
The dismissal of the direct causes of action requires the dismissal of the derivative cause of action. We therefore modify the order by granting the motion to renew and on renewal granting the prior motion for summary judgment and dismissing the complaint against defendant.