Jorquera v. Fannwood Estates, LLC

In an action to recover damages for personal injuries, the third-party defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dufficy, J.), dated December 7, 2012, as denied their cross motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when he fell off a ladder while preparing to paint a stairwell in a building owned and managed by the defendants/third-party plaintiffs, Fannwood

The third-party defendants cross-moved for summary judgment dismissing the third-party complaint, contending that they were entitled to judgment as a matter of law, regardless of whether they were the plaintiffs employer. They argued that, according to the plaintiff’s account, they were his employers, and there was no allegation that the plaintiff had sustained a “grave injury.” Thus, the defendants’ third-party causes of action for common-law indemnification and contribution were barred by Workers’ Compensation Law § 11. The third-party defendants further contended that under Briceno’s version of the facts, the plaintiff was not W.B.’s employee. Therefore, they argued, the sole cause of action against the defendants which had survived prior motion practice, alleging a violation of Labor Law § 240 (1), was not viable, since the plaintiff was not employed within the meaning of the Labor Law at the time of the accident.

The Supreme Court correctly concluded that the third-party defendants did not establish their prima facie entitlement to judgment as a matter of law dismissing the third-party complaint. Since a triable issue of fact existed as to whether the plaintiff was employed by the third-party defendants, they failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the third-party causes of action for contribution and common-law indemnification pursuant to Workers’ Compensation Law § 11 (see Quinn v Hillside Dev. Corp., 309 AD2d 794 , 795 [2003]). Moreover, contrary to the third-party defendants’ contention, their submissions failed to eliminate all triable issues of fact as to whether the plaintiff, under Briceno’s version of the facts, was employed within the meaning of the Labor Law by an entity other than WB. at the time of the accident (see Torres v Perry St. Dev. Corp., 104 AD3d 672 , 674 [2013]; Baker v Muraski, 61 AD3d 1373 , 1373-1374 [2009]). The third-party defendants also did not establish, prima

The parties’ remaining contentions either need not be reached in light of our determination or are without merit.

Eng, EJ., Leventhal, Sgroi and Maltese, JJ., concur.