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BIN GU v. PALM BEACH TAN, INC.

2010-01377.

81 A.D.3d 869 (2011)

917 N.Y.S.2d 878

BIN GU, Respondent, v. PALM BEACH TAN, INC., et al., Defendants/Third Third-Party Plaintiffs/Fourth Third-Party Plaintiffs, et al., Defendant/Third-Party Plaintiff, RD MANAGEMENT LLC et al., Defendants, and NEW YORK CONNECTICUT DEVELOPMENT CORP., Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third Third-Party Defendant. SMART CHOICE OF NEW YORK, INC., Second Third-Party Defendant/ Fourth Third-Party Defendant-Appellant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided February 22, 2011.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly denied that branch of the motion of the second third-party defendant/fourth third-party defendant, Smart Choice of New York, Inc., which was for summary judgment dismissing the cause of action in the amended complaint alleging a violation of Labor Law § 240 (1), because triable issues of fact exist as to whether the plaintiff's alleged conduct was the sole proximate...

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