Payne v. J & T Properties

Appeals from an order of the Supreme Court, Onondaga County (Charles T. Major, J.), entered August 29, 2003. The order, insofar as appealed from, denied the motion of third-party defendant and the cross motion of defendant for summary judgment dismissing the complaint and granted in part plaintiffs’ cross motion for summary judgment. It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the motion and defendant’s cross motion are granted, the complaint is dismissed and plaintiffs’ cross motion is denied in its entirety. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Henry Payne (plaintiff) when he 1057 fell from the roof of a building owned by defendant, J & T Properties (J & T), while employed by third-party defendant, Kissane Water Conditioning, Inc. (KWC). J & T and KWC appeal from an order that, inter alia, denied KWC’s motion and J & T’s cross motion for summary judgment dismissing the complaint. We agree that Supreme Court should have granted the motion of KWC and cross motion of J & T and should have denied that part of plaintiffs’ cross motion that sought partial summary judgment on plaintiffs’ Labor Law § 240 cause of action. J & T and KWC established that John and Timothy Kissane are the only partners of J & T and also co-employees of plaintiff at KWC, thereby establishing that they were “in the same employ” as plaintiff (Workers’ Compensation Law § 29 [6]; see Kupke v Mullane, 215 AD2d 531, 532 [1995]), and plaintiffs failed to raise an issue of fact in opposition thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We therefore conclude that plaintiffs’ action against J & T is barred (see Livsey v Main-Livingston Assoc., 8 AD3d 1097, 1098 [2004]), and we reverse the order insofar as appealed from, grant KWC’s motion and J & T’s cross motion for summary judgment, dismiss the complaint and deny in its entirety plaintiffs’ cross motion. Present—Hurlbutt, J.P., Gorski, Martoche, Lawton and Hayes, JJ.