Byrne v. Power , 765 N.Y.S.2d 351 ( 2003 )

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about November 29, 2002, which, inter alia, denied defendant 502-508 West 180th Street Corp.’s motion for summary judgment, unanimously affirmed, without costs.

Under the particular circumstances presented, the check issued from defendant 502-508 West 180th Street Corp. to plaintiff sufficed to raise an issue of fact as to whether that defendant was plaintiffs employer and thus subject to liability in that capacity in this Labor Law action. Plaintiff testified at his deposition that the subject check was issued in payment for work he performed on the job prior to the time of the accident. He also testified that he worked for defendant Francis Travers, a co-owner of the property at which plaintiff was working at the time of his accident, and a principal of defendant 502-508, who gave certain instructions at the job site. Credibility issues abound, respecting the parties’ conflicting claims as to the reason for issuance of the check — the only documentary evidence bearing on employment — and the capacity in which Travers acted.

We have considered 502-508’s remaining arguments and find them unavailing. Concur — Nardelli, J.P., Mazzarelli, Andrias, Marlow and Gonzalez, JJ.