Alvira v Residential Mgt., 2011 NY Slip Op 07709 [89 AD3d 437]

November 1, 2011

Appellate Division, First Department

— [*1]

Edelstein & Grossman, New York (Jonathan I. Edelstein of counsel), for appellant.

Fischetti & Pesce, LLP, Garden City (John E. McLoughlin of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered November 19, 2010, which, upon renewal, granted defendant’s motion for summary judgment dismissing the complaint in its entirety and denied plaintiff’s cross motion for partial summary judgment on the issue of liability, unanimously modified, on the law, to deny defendant’s motion for summary judgment, and otherwise affirmed, without costs.

The court did not improvidently exercise its discretion by granting plaintiff’s motion for renewal in light of “the strong public policy in favor of resolving cases on the merits” ( Acosta v State of New York , 270 AD2d 164, 165 [2000]; see Rancho Santa Fe Assn. v Dolan-King , 36 AD3d 460 , 461 [2007]). However, upon renewal, the court erred in granting defendant’s motion for summary judgment dismissing the complaint in its entirety. Triable issues of fact exist as to whether plaintiff was defendant’s special employee ( see Fung v Japan Airlines Co., Ltd. , 9 NY3d 351 , 359 [2007]; Thompson v Grumman Aerospace Corp. , 78 NY2d 553, 557 [1991]).

On this record, plaintiff was not entitled to summary judgment on the issue of defendant’s liability under Labor Law § 240. In addition to the special employee issue, there is a triable issue as to whether plaintiff was engaged in cleaning when he fell from a ladder. Concur—Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ..