LOZADO v. FELICE

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

Walter LOZADO, appellant, v. Madeline FELICE, et al., respondents.

Decided: June 28, 2004

ANITA R. FLORIO, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, and ROBERT A. LIFSON, JJ. Michael A. Cervini, Jackson Heights, N.Y. (Nora Constance Marino of counsel), for appellant. Huttner, Mingino & Budashewitz, P.C., New York, N.Y. (Lee Michael Huttner of counsel), for respondent Madeline Felice. Parisi & Smitelli, Rockville Centre, N.Y. (Robin Mary Heaney of counsel), for respondents Tri State Commercial Builders, Inc., & Lic Contracting.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bonina, J.), dated December 24, 2002, as granted the motion of the defendant Madeline Felice, and the separate motion of the defendants Tri State Commercial Builders, Inc., and Lic Contracting for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff allegedly was injured while working on a remodeling project at the home of the defendant Madeline Felice, who was the president of Plakos Scrap Processors (hereinafter Plakos), the plaintiff's employer.   After receiving workers' compensation benefits from Plakos's insurer, the plaintiff commenced this action against Felice, Lic Contracting (hereinafter Lic), which originally was hired by Felice to work on the remodeling project, and Tri State Commercial Builders, Inc. (hereinafter Tri State), the parent company of Lic, alleging negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

The Supreme Court properly granted Felice's motion for summary judgment dismissing the complaint insofar as asserted against her.   Since Felice was acting within the scope of her employment by Plakos when she directed the plaintiff's work at her residence and since the plaintiff was acting within the scope of his employment by Plakos at the time of the accident, the plaintiff and Felice were coemployees.   Therefore, workers' compensation was the plaintiff's exclusive remedy, and he is barred from maintaining this action against Felice (see Workers' Compensation Law § 29[6];  Macchirole v. Giamboi, 97 N.Y.2d 147, 150, 736 N.Y.S.2d 660, 762 N.E.2d 346;  Heritage v. Van Patten, 59 N.Y.2d 1017, 1019, 466 N.Y.S.2d 958, 453 N.E.2d 1247;  Sojka v. Romeo, 293 A.D.2d 522, 523, 740 N.Y.S.2d 423).

The Supreme Court also properly granted the motion of Tri State and Lic for summary judgment dismissing the complaint insofar as asserted against them.   Tri State and Lic established their prima facie entitlement to summary judgment by submitting evidence that they were not “contractors,” within the meaning of Labor Law §§ 240(1) and 241, at the time of the plaintiff's accident (see Townsend v. Nenni Equip. Corp., 208 A.D.2d 825, 618 N.Y.S.2d 378;  Nowak v. Smith & Mahoney, 110 A.D.2d 288, 494 N.Y.S.2d 449;  cf. Williams v. Dover Home Improvement, 276 A.D.2d 626, 714 N.Y.S.2d 318), and that they had no authority to supervise or control the plaintiff or his work, as required in an action alleging common-law negligence or a violation of Labor Law § 200 (see Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805;  Aranda v. Park E. Constr., 4 A.D.3d 315, 316-317, 772 N.Y.S.2d 70;  cf. Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352-353, 670 N.Y.S.2d 816, 693 N.E.2d 1068).   In opposition, the plaintiff failed to raise a triable issue of fact.

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