GONZALEZ v. Felise Garage Corp., Defendant-Appellant.

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

Alberto GONZALEZ, et al., Plaintiffs-Respondents, v. 310 WEST 38TH, L.L.C., Defendant-Respondent, Felise Garage Corp., Defendant-Appellant.

Decided: January 27, 2005

ANDRIAS, J.P., SAXE, ELLERIN, SWEENY, CATTERSON, JJ. Law Offices of Steven G. Fauth, New York (James A. Aldag of counsel), for appellant. Jacoby & Meyers, Newburgh (Andrew L. Spitz of counsel), for Gonzalez respondents. Brill & Associates, P.C., New York (Adam M. Bialek of counsel), for 310 West 38th, L.L.C., respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 16, 2003, which, in an action by a laborer for personal injuries sustained when he fell from a ladder, insofar as appealed from as limited by the briefs, denied defendant-appellant's motion for summary judgment dismissing plaintiff's cause of action under Labor Law § 240(1) as against it, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered April 23, 2004, which, insofar as appealed from, deemed appellant's motion to renew and reargue to be one for reargument only, and so considered, denied the motion, unanimously dismissed, without costs, as taken from a nonappealable order.

 Appellant's argument that it is the alter ego of plaintiff's employer, and that the Workers' Compensation Law therefore bars the action as against it, was correctly rejected by the motion court on the ground that the record fails to demonstrate that plaintiff's employer exercised complete domination and control over appellant's everyday operations (see Allen v. Oberdorfer Foundries, 192 A.D.2d 1077, 595 N.Y.S.2d 995 [1993];  Cruz v. HSS Props. Corp., 309 A.D.2d 720, 766 N.Y.S.2d 835 [2003] ).   However, the record does conclusively demonstrate that plaintiff was engaged in the painting of a building when injured, and that he is therefore protected by Labor Law § 240(1).   We have considered appellant's other arguments and find them unavailing.