Whelen v. Warwick Valley Civic & Social Club

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Although the Labor Law defines an individual "employed” as including one who is "permitted or suffered to work” (§ 2, subd 7), this definition must be read in conjunction with that of "employee”, which is defined as "a mechanic, workingman or laborer working for another for hire” (§ 2, subd 5) (emphasis added). To come within the special class for whose benefit absolute liability is imposed upon contractors, owners and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent. A volunteer who offers his services gratuitously cannot claim the protection afforded by the "flat and unvarying duty” flowing to this special class contained in section 240. (Yearke v Zarcone, 57 AD2d 457 , 459, mot for lv to app den 43 NY2d 643 .)

Chief Judge Cooke, and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg taking no part.

Order affirmed.