Stringer v. Musacchia

Spain, J. (dissenting).

We respectfully dissent, agreeing with Supreme Court’s determination that plaintiff is entitled to summary judgment on his Labor Law § 240 (1) claim. To be sure, “[a] volunteer who offers his [or her] services gratuitously cannot claim the protection afforded by the ‘flat and unvarying duty’ flowing to [the] special class [of employees protected by] section 240” (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979] [emphasis added], quoting Yearke v Zarcone, 57 AD2d 457, 459 [1977], lv denied 43 NY2d 643 [1977]).

Here, plaintiff, a self-employed…