BONCORE v. TEMPLE BETH ZION BRD (2002)

 Plaintiffs commenced this Labor Law action seeking damages for injuries sustained by Kenneth C. Boncore (plaintiff).   Supreme Court properly granted plaintiffs' cross motion for partial summary judgment on liability on the Labor Law § 240(1) claim.   In support of the cross motion, plaintiffs submitted the deposition testimony of plaintiff, who testified that the ladder on which he was standing slid to the right and fell, causing him to fall backwards onto the ground and the bottom of the ladder.   Plaintiffs thus established that the ladder was not so “placed * * * as to give proper protection to” plaintiff as required by Labor Law § 240(1) and that the statutory violation was a proximate cause of his injuries (see Dahl v. Armor Bldg. Supply, 280 A.D.2d 970, 971, 720 N.Y.S.2d 880;  Pomarzynski v. Park School, 278 A.D.2d 946, 718 N.Y.S.2d 685).   In opposition to the cross motion, defendants failed to raise a triable issue of fact whether plaintiff's conduct was the sole proximate cause of the accident (see Dahl, 280 A.D.2d at 971, 720 N.Y.S.2d 880;  Griffin v. MWF Dev. Corp., 273 A.D.2d 907, 908, 709 N.Y.S.2d 322;  cf.  Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317).

 We reject defendants' contention that plaintiff was not “employed” at the time of his accident within the meaning of Labor Law § 2(7).   That section and section 2(5), which are read together, broadly define “employed” (see Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032;  Peglow v. L & A Bldrs., 251 A.D.2d 1015, 1016, 674 N.Y.S.2d 202).   To come within the special class of persons entitled to the protection of Labor Law § 240(1), “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” (Whelen, 47 N.Y.2d at 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032).   Here, plaintiffs submitted the deposition testimony of plaintiff, an electrician hired by a subcontractor to perform work for defendant BRD, Inc., who testified that he had been running a piece of cable down a wall for approximately two hours prior to the accident.   At the time of the accident, he was placing a cover over a hole in that wall.   In opposition to the cross motion, defendants submitted the affidavit of plaintiff's supervisor, who averred that he had directed plaintiff not to cover the hole in the wall.   Assuming, arguendo, that plaintiff's supervisor had so directed plaintiff, we nevertheless conclude that plaintiff was an employee working for his employer, rather than a mere volunteer, while performing that work (see Daniello v. Holy Name Church, 286 A.D.2d 268, 269-270, 730 N.Y.S.2d 56;  cf.  Schwab v. Campbell, 266 A.D.2d 840, 841, 697 N.Y.S.2d 424).   Further, “[i]t is not necessary that an employee be actually working on his assigned duties at the time of the injury” to be entitled to the protection of section 240(1) (Reeves v. Red Wing Co., 139 A.D.2d 935, 936, 527 N.Y.S.2d 916;  see Reinhart v. Long Is. Light. Co., 91 A.D.2d 571, 457 N.Y.S.2d 57, appeal dismissed 58 N.Y.2d 1113, 1983 WL 211721).   Defendants therefore failed to raise a triable issue of fact with respect to plaintiff's status as an employee.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: