DOWNEY v. 46 (2006)

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered February 16, 2006, which denied plaintiff's motion for partial summary judgment as to liability under Labor Law § 240, and denied the cross motion of defendant Local 46 Second Holding Corporation s/h/a Local 46 2nd Holding Company for summary judgment on its cross claims for common-law and contractual indemnification, unanimously affirmed, with separate bills of cost in favor of defendants payable by plaintiff.

 Recovery under the absolute liability provisions of Labor Law § 240(1) requires a showing that the plaintiff “was hired by someone, be it owner, contractor, or their agent” (Whelen v. Warwick Valley Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032 [1979] ).   Questions of fact as to plaintiff's employment status preclude summary disposition.

 Similarly, there is an issue of fact as to indemnification.   The motion was premature, having been brought prior to the preliminary conference or the opportunity of the parties to conduct discovery (Bradley v. Ibex Constr. LLC, 22 A.D.3d 380, 801 N.Y.S.2d 901 [2005] ).

We have considered the parties' remaining arguments for affirmative relief and find them without merit.