Downey v Local 46 2nd Holding Co.

Downey v Local 46 2nd Holding Co. 2006 NY Slip Op 08330 [34 AD3d 318] November 16, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Steven Downey, Appellant-Respondent,
v
Local 46 2nd Holding Company, Respondent-Appellant, and Local 46 Education and Apprentice Training Center, Respondent, et al., Defendant.

—[*1]Order, Supreme Court, New York County (Harold B. Beeler, J.), entered February 16, 2006, which denied plaintiff's motion for partial summary judgment as to liability under Labor Law § 240, and denied the cross motion of defendant Local 46 Second Holding Corporation, sued herein as Local 46 2nd Holding Company, for summary judgment on its cross claims for common-law and contractual indemnification, unanimously affirmed, with separate bills of cost in favor of defendants payable by plaintiff.

Recovery under the absolute liability provisions of Labor Law § 240 (1) requires a showing that the plaintiff "was hired by someone, be it owner, contractor or their agent" (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]). Questions of fact as to plaintiff's employment status preclude summary disposition.

Similarly, there is an issue of fact as to indemnification. The motion was premature, having been brought prior to the preliminary conference or the opportunity of the parties to conduct discovery (Bradley v Ibex Constr. LLC, 22 AD3d 380 [2005]). [*2]

We have considered the parties' remaining arguments for affirmative relief and find them without merit. Concur—Buckley, P.J., Mazzarelli, Nardelli, Catterson and Malone, JJ.