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Morales v. D a Food Service

Court of Appeals of the State of New York
Jun 25, 2008
2008 N.Y. Slip Op. 5769 (N.Y. 2008)

Opinion

No. 117.

Argued May 29, 2008.

decided June 25, 2008.

APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered June 28, 2007. The Appellate Division affirmed so much of an order of the Supreme Court, Bronx County (Sallie Manzanet, J.), as granted defendant Santomero's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim against him and denied plaintiff's cross motion for partial summary judgment as to liability on that cause of action. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"

Plaintiff commenced this action against the landlord and tenant of commercial property after plaintiff allegedly slipped and fell while descending a ladder after drilling holes to run telephone cable through a wall in defendant landlord's building upon the request of the tenant.

The Appellate Division concluded that because the work was performed without defendant landlord's knowledge, and in violation of the lease requirement that tenant obtain consent prior to making repairs, the landlord could not be held liable under Labor Law § 240 (1).

Morales v D A Food Serv., 41 AD3d 352, reversed.

Irom, Wittels, Freund, Berne Serra, P.C., Bronx ( Richard W. Berne of counsel), for appellant.

Law Office of John P. Humphreys, New York City ( Eric P. Tosca of counsel), for respondent.

Before: Chief Judge KAYE and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur; Judge CIPARICK taking no part.


OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiff's cross motion for partial summary judgment on his Labor Law § 240 (1) cause of action against defendant Santomero granted and the certified question answered in the negative.

Contrary to defendant's argument, plaintiff's work constituted an alteration within the meaning of Labor Law § 240 (1) ( see Joblon v Solow, 91 NY2d 457, 465). In light of our recent decision in Sanatass v Consolidated Inv. Co., Inc. ( 10 NY3d 333), defendant's contention that he lacks a sufficient nexus with plaintiff to support liability under section 240 (1) is without merit. Since plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his section 240 (1) claim and defendant failed to raise a triable issue of fact in opposition thereto, plaintiff is entitled to partial summary judgment on liability.

Order reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiff's cross motion for partial summary judgment as to liability on his Labor Law § 240 (1) cause of action against defendant Santomero granted and certified question answered in the negative, in a memorandum.


Summaries of

Morales v. D a Food Service

Court of Appeals of the State of New York
Jun 25, 2008
2008 N.Y. Slip Op. 5769 (N.Y. 2008)
Case details for

Morales v. D a Food Service

Case Details

Full title:LINO MORALES, Appellant, v. D A FOOD SERVICE, Defendant, and CAMILLO M…

Court:Court of Appeals of the State of New York

Date published: Jun 25, 2008

Citations

2008 N.Y. Slip Op. 5769 (N.Y. 2008)
2008 N.Y. Slip Op. 5769
862 N.Y.S.2d 449
892 N.E.2d 842

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