2008 NY Int. 97
This opinion is uncorrected and subject to revision before publication in the Official Reports.
2008 NY Slip Op 05769
Decided on June 25, 2008
No. 117
Lino Morales, Appellant,
v
D & A Food Service, Defendant, Camillo M. Santomero, III, Respondent.
Richard W. Berne, for appellant.
Eric P. Tosca, for respondent.
MEMORANDUM
The order of the Appellate Division should be reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiff's 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 NY2d 457, 465 [1998]). In light of our recent decision in Sanatass v Consolidated Inv. Co., Inc. 10 NY3d 333 [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.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, defendant Santomero's motion for summary judgment denied, plaintiff's cross motion for partial summary judgment as to liability on his Labor Law § 240(1) cause of action against defendant Santomero granted and certified question answered in the negative, in a memorandum. Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur. Judge Ciparick took no part.
Decided June 25, 2008