Smith v. Girls Club of N.Y.

• Decision Date: 09 June 2015
• Parties: Mark A. SMITH, Plaintiff–Appellant, v. The GIRLS CLUB OF NEW YORK, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 473

9 N.Y.S.3d 869 (Mem)

2015 N.Y. Slip Op. 04775

Mark A. SMITH, Plaintiff–Appellant

v.The GIRLS CLUB OF NEW YORK, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 9, 2015.

Mark A. Smith, appellant pro se.

McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for respondent.

Opinion

Order of the Appellate Term of the Supreme Court, First Department, entered December 13, 2012, which affirmed two orders, Civil Court, Bronx County (Irving Rosen, J.H.O.), entered June 16, 2009 and May 19, 2010, respectively, denying plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim and, upon renewal, adhering to that determination, unanimously affirmed, without costs.

The record shows that plaintiff was injured while voluntarily participating in a community service program in lieu of incarceration. Accordingly, the court correctly denied plaintiff's motion for partial summary judgment, since he failed to establish that he was an “employee” entitled to the protections of Labor Law § 240(1) (see Stringer v. Musacchia, 11 N.Y.3d 212, 869 N.Y.S.2d 362, 898 N.E.2d 545 [2008] ; Whelen v. Warwick Val. Civil & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032 [1979] ; Pigott v. State of New York, 199 A.D.2d 734, 605 N.Y.S.2d 446 [3d Dept.1993] ). The evidence does not support plaintiff's assertion that he was employed by an agent of defendant, and his reliance on the Workers' Compensation Law is unavailing. Nor does the alleged new evidence submitted by plaintiff in support of his motion to renew warrant a different result (see Gal–Ed v. 153rd St. Assoc., LLC, 73 A.D.3d 438, 439, 901 N.Y.S.2d 592 [1st Dept.2010] ).

FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, RICHTER, FEINMAN, JJ., concur.