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ALLEGATION PLAINTIFF WAS TOLD NOT TO WORK ON THE DAY HE FELL FROM A SCAFFOLD PRECLUDED SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR; THE DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK.

The Second Department, reversing Supreme Court, determined defendants had raised a triable issue of fact about whether plaintiff had their permission to work when plaintiff fell from a scaffold. The definition of an employee under the Labor Law includes “permission to work.” Here the defendants alleged plaintiff was specifically told not to work until certain demolition work was done:

The Labor Law defines “employee” as “a mechanic, workingman or laborer working for another for hire” (Labor Law § 2[5]), and “employed” as “permitted or suffered to work” (Labor Law § 2[7]). “To come within the special class for whose benefit absolute liability is imposed upon contractors, owners, and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent” … . Aslam v Neighborhood Partnership Hous. Dev. Fund Co., Inc., 2016 NY Slip Op 00316, 2nd Dept 1-20-16

LABOR LAW (DEFINITION OF EMPLOYEE INCLUDES PERMISSION TO WORK, HERE ALLEGATION EMPLOYEE WAS TOLD NOT WORK RAISED ISSUE OF FACT ON LIABILITY)/EMPLOYEE (LABOR LAW DEFINITION INCLUDES REQUIREMENT THAT EMPLOYEE HAVE PERMISSION TO WORK)

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THE BURGLARY COUNT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT WAS ARMED WITH A “KNIFE” WHICH IS NOT NECESSARILY A “DEADLY WEAPON;” THE ATTEMPT TO AMEND THE COUNT WAS NOT AUTHORIZED; THE SANDOVAL RULING WAS (HARMLESS) ERROR (SECOND DEPT).
ALTHOUGH THE SECOND ORDER TO SHOW CAUSE SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM WAS FILED TWO DAYS AFTER THE ONE-YEAR-NINETY-DAY LIMITATIONS PERIOD, THE STATUTE OF LIMITATIONS WAS TOLLED FOR THREE DAYS BETWEEN THE FILING AND THE DENIAL OF THE FIRST ORDER TO SHOW CAUSE; THE MEDICAL RECORDS PROVIDED THE MUNICIPALITY WITH NOTICE OF THE ESSENTAL FACTS OF THE CLAIM; THE MOTION FOR LEAVE TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
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Failure to Give the Jury Instruction on Intoxication Required Reversal
WHERE LIABILITY IS CONCEDED BY STIPULATION, PREJUDGMENT INTEREST RUNS FROM THE SUBSEQUENT DAMAGES VERDICT.
A LOCAL LAW WHICH CURTAILED THE POWER OF AN ELECTED OFFICER TO ACT WAS DEEMED INVALID BECAUSE IT WAS NOT SUBJECT TO A PUBLIC REFERENDUM (SECOND DEPT).
THE VAGUE IDENTIFICATION EVIDENCE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

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