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DOWNEY v. LOCAL 46 2ND HOLDING COMPANY

34 A.D.3d 318 (2006)

824 N.Y.S.2d 267

STEVEN DOWNEY, Appellant-Respondent, v. LOCAL 46 2ND HOLDING COMPANY, Respondent-Appellant, and LOCAL 46 EDUCATION AND APPRENTICE TRAINING CENTER, Respondent, et al., Defendant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 16, 2006.

Recovery under the absolute liability provisions of Labor Law § 240 (1) requires a showing that the plaintiff "was hired by someone, be it owner, contractor or their agent" (Whelen v Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971 [1979]). Questions of fact as to plaintiff's employment status preclude summary disposition.

Similarly, there is an issue of fact as to indemnification. The motion was premature, having...

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