Russell v. Gaines

—Order reversed on the law without costs, motion denied and cross motion granted. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment on the ground that plaintiff’s Labor Law §§ 240 and 241 and negligence causes of action are barred by Workers’ Compensation Law § 29 (6). Plaintiff was hired by Gaines Electrical Contracting, Inc. (Gaines Electrical) through Temporary Career Services as a temporary employee to do carpentry work on Gaines Electrical’s warehouse. While so employed, plaintiff was instructed by defendant’s decedent, Roy Gaines (Gaines), president and sole shareholder of Gaines Electrical, that, when the warehouse job was finished, plaintiff was to replace the roof of Gaines’s privately owned farmhouse. While working on the roof of the farmhouse, plaintiff fell and sustained injuries after stepping on a loose piece of plywood. It is uncontested that plaintiff was not supplied with safety equipment. After this action was commenced, Gaines died and Renee Gaines, as executrix of his estate, was substituted as defendant. On a motion for summary judgment, a defendant has the burden of establishing the defense of Workers’ Compensation Law by a preponderance of the evidence (see, Donatin v Sea [940] Crest Trading Co., 181 AD2d 654, 655). Defendant failed to meet that burden. Workers’ Compensation Law § 29 (6) provides that its provisions "shall be the exclusive remedy to an employee * * * when such employee is injured or killed by the negligence or wrong of another in the same employ.” In order to come within the protection of the exclusivity provision of Workers’ Compensation Law § 29 (6), "a defendant must himself have been in the course of his employment at the time of the injury” (Connell v Brink [appeal No. 1], 199 AD2d 1032, citing Maines v Cronomer Val. Fire Dept., 50 NY2d 535, 543). Defendant made no showing that Gaines was acting within the scope of his employment with Gaines Electrical at the time plaintiff was injured, or that Gaines Electrical had an ownership interest in or exercised control over the farmhouse, or that it benefitted from the work performed by plaintiff. In her motion for summary judgment, defendant merely asserted that Gaines was the sole shareholder and an employee of Gaines Electrical and was the owner of the farmhouse where the accident occurred. That was insufficient to establish a defense under Workers’ Compensation Law § 29 (6) (see, Connell v Brink, supra; Cusano v Staff, 191 AD2d 918; Donatin v Sea Crest Trading Co., supra). In light of our decision, plaintiff’s cross motion for partial summary judgment on the Labor Law § 240 (1) cause of action is granted. It is uncontested that plaintiff fell and was injured while engaged in an "elevation-related risk” at a construction site lacking appropriate safety equipment (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; see, Tiernan v County of Monroe, 172 AD2d 1068; Staples v Town of Amherst, 146 AD2d 292). Defendant has raised the statutory defense that, because Gaines was the owner of a one-family dwelling "who contracted] for but * * * [did] not direct or control the work”, she is not liable (Labor Law § 240 [1]). In her motion for summary judgment, however, defendant conceded that Gaines and/or Gaines Electrical "had complete control and direction concerning the work performed by plaintiff”. That constitutes a judicial admission that is binding on defendant (see, Pok Rye Kim v Mars Cup Co., 102 AD2d 812; Richardson, Evidence § 209 [Prince 10th ed]). All concur except Wesley, J., who dissents and votes to affirm in the following Memorandum.