Smith v. Girls Club — 129 A.D.3d 473

Majority

p. 473

Mark A. Smith, Appellant, v Girls Club of New York, Respondent.

[9 NYS3d 869]

Order of the Appellate Term of the Supreme Court, First Department, entered December 13, 2012, which affirmed two orders, Civil Court, Bronx County (Irving Rosen, J.H.O.), entered June 16, 2009 and May 19, 2010, respectively, denying plaintiff’s motion for partial summary judgment on his Labor Law § 240 (1) claim and, upon renewal, adhering to that determination, unanimously affirmed, without costs.

The record shows that plaintiff was injured while voluntarily participating in a community service program in lieu of incarceration. Accordingly, the court correctly denied plaintiff’s motion for partial summary judgment, since he failed to establish that he was an “employee” entitled to the protections of

p. 474

Labor Law § 240 (1) (see Stringer v Musacchia, 11 NY3d 212 [2008]; Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970 , 971 [1979]; Pigott v State of New York, 199 AD2d 734 [3d Dept 1993]). The evidence does not support plaintiff’s assertion that he was employed by an agent of defendant, and his reliance on the Workers’ Compensation Law is unavailing. Nor does the alleged new evidence submitted by plaintiff in support of his motion to renew warrant a different result (see Gal-Ed v 153rd St. Assoc., LLC, 73 AD3d 438 , 439 [1st Dept 2010]).

Concur — Friedman, J.P., Acosta, Moskowitz, Richter and Feinman, JJ.

Cases cited

Stringer v. Musacchia 11 NY3d 212 N.Y. 2008-10-21 p. 474
Whelen v. Warwick Valley Civic & Social Club 47 NY2d 970 N.Y. 1979-07-09 at 971 p. 474
Gal-Ed v. 153rd Street Associates, LLC 73 AD3d 438 N.Y. App. Div. 2010-05-04 at 439 p. 474

Statutes and regulations cited

Labor Law p. 473, p. 474