Lee v. Jones

• Decision Date: 26 June 1997
• Citation: 659 N.Y.S.2d 549,230 A.D.2d 435
• Parties: Paul F. LEE et al., Respondents, v. Kevin S. JONES et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 549

659 N.Y.S.2d 549

230 A.D.2d 435

Paul F. LEE et al., Respondents, v. Kevin S. JONES et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division Third Department.

June 26, 1997.

Horigan, Horigan, Pennock & Lombardo P.C. (Krishna K. Singh, of counsel), Amsterdam, for appellants.

Capasso, Burns & Massaroni (Kevin P. Wicka, of counsel), Schenectady, for respondents.

Before MERCURE, J.P., and CASEY, PETERS, SPAIN and CARPINELLO, JJ.

MERCURE, Justice Presiding.

Appeal from an order of the Supreme Court (Best, J.), entered April 1, 1996 in Fulton County, which denied a motion by defendants Kevin S. Jones and Jacqueline S. Jones for summary judgment dismissing, inter alia, the causes of action against them pursuant to Labor Law § 240(1) and § 241(6).

Defendants Kevin S. Jones and Jacqueline S. Jones (hereinafter collectively referred to as defendants) engaged defendant George Batease to perform repairs to the roof of their four-family dwelling in the City of Gloversville, Fulton County. Batease was injured while performing the work, however, and he sent his wife and daughter to ask plaintiff Paul F. Lee (hereinafter plaintiff) to come over and cover the worksite with a tarp, secure a piece of drip edge with a couple of nails and collect Batease's tools and bring them home. Plaintiff agreed and while so engaged fell from a ladder, sustaining the injuries forming the basis for this action alleging common-law negligence and violations of the Labor Law. Following joinder of issue, defendants moved for summary judgment dismissing the complaint against them upon the ground, inter alia, that plaintiff was not an employee working on the property at the time of his accident and, as such, was not within the class of persons for whom protection is provided by the Labor Law. Supreme Court denied the motion with regard to the causes of action predicated upon Labor Law § 240(1) and § 241(6) and defendants now appeal.

Fundamentally, recovery under Labor Law § 200(1), § 240(1) or § 241(6) is conditioned upon a showing that the plaintiff "was both permitted or suffered to work on a building or structure and * * * was hired by someone, be it owner, contractor or their agent " (Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032 [emphasis supplied]; see, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577, 561 N.Y.S.2d 892, 563 N.E.2d 263; Marchese v. Grossarth, 232 A.D.2d 924, 648 N.Y.S.2d 810, lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502). For that reason, "[a] volunteer who offers his [or her] services gratuitously cannot claim the protection afforded by the 'flat and unvarying duty' flowing to this special class" (Whelen v. Warwick Val. Civic & Social Club, supra, at 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032, quoting Yearke v. Zarcone, 57 A.D.2d 457, 459, 395 N.Y.S.2d 322, lv. denied 43 N.Y.2d 643, 401 N.Y.S.2d 1027, 372 N.E.2d 580; see, Mordkofsky v. V.C.V. Dev. Corp., supra; Pigott v. State of New York, 199 A.D.2d 734, 605 N.Y.S.2d 446; Chabot v. Baer, 82 A.D.2d 928, 440 N.Y.S.2d 734, affd. 55 N.Y.2d 844, 447 N.Y.S.2d 705, 432 N.E.2d 598). Therefore, if defendants succeed in establishing their claim that plaintiff merely volunteered his services to Batease, with no agreement or reasonable expectation concerning payment, the causes of action alleging Labor Law violations must fail.

Without doubt, the issue cannot be resolved on the basis of the parties' sharply conflicting evidentiary submissions on the summary judgment motion. The more useful inquiry is whether preclusive effect should be given to the prior determination of the Workers' Compensation Board denying plaintiff benefits on the basis of the Board's ultimate finding that there was no employee-employer relationship between plaintiff and Batease. We conclude that collateral estoppel should be applied so as to bar plaintiff from relitigating the issue of whether he was a mere volunteer on the day of the accident and accordingly reverse Supreme Court's order and award defendants summary judgment dismissing the complaint against them.

It is well-settled law "that the doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies * * * when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law" (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 467 N.E.2d 487 [citations omitted] ). The Workers' Compensation Board is such an agency (see, e.g., Vogel v. Herk El. Co., 229 A.D.2d 331, 645 N.Y.S.2d 32; Langdon v. WEN Mgt. Co., 147 A.D.2d 450, 537 N.Y.S.2d 603). "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same * * * " (Ryan v. New York Tel. Co., supra, at 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [citations omitted] ). The only elements that need be established are, first, that the identical issue was necessarily decided in the prior action and is decisive in the present one and, second, that the party to be precluded had a full and fair opportunity to contest the prior determination (see, D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 564 N.E.2d 634; Ryan v. New York Tel. Co., supra, at 501, 478 N.Y.S.2d 823, 467 N.E.2d 487). The second...