Morales v. D & a Food Service

• Decision Date: 25 June 2008
• Docket Number: No. 117,117
• Citation: Morales v. D & a Food Service, 892 N.E.2d 842, 10 N.Y.3d 911 (N.Y. 2008)
• Parties: Lino MORALES, Appellant, v. D & A FOOD SERVICE, Defendant, and Camillo M. Santomero, III, Respondent.
• Court: New York Court of Appeals Court of Appeals

892 N.E.2d 842

10 N.Y.3d 911

Lino MORALES, Appellant, v. D & A FOOD SERVICE, Defendant, and Camillo M. Santomero, III, Respondent.

No. 117

Court of Appeals of New York.

June 25, 2008.

Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W. Berne of counsel), for appellant.

Law Office of John P. Humphreys, New York City (Eric P. Tosca of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiffs cross motion for partial summary judgment on his Labor Law § 240(1) cause of action against defendant Santomero granted and the certified question answered in the negative.

Contrary to defendant's argument, plaintiff's work constituted an alteration within the meaning of Labor Law § 240(1) (see Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998]). In light of our recent decision in Sanatass v. Consolidated Inv. Co., Inc., 10 N.Y.3d 333, 858 N.Y.S.2d 67, 887 N.E.2d 1125 (2008), defendant's contention that he lacks a sufficient nexus with plaintiff to support liability under section 240(1) is without merit. Since plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his section 240(1) claim and defendant failed to raise a triable issue of fact in opposition thereto, plaintiff is entitled to partial summary judgment on liability.

Chief Judge KAYE and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur; Judge CIPARICK taking no part.

Order reversed, with costs, defendant Santomero's motion for summary judgment den...