ZIMMERMAN v. WEIG

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to the contention of defendant, Supreme Court properly granted plaintiff's motion insofar as it sought partial summary judgment on liability on the Labor Law § 240 (1) cause of action. Plaintiff established that he was an "employee" who was "employed" on the project ( see § 2 [5], [7]; see also Thompson v. Marotta, 256 A.D.2d 1124, 1125; Vernum v. Zilka, 241 A.D.2d 885, 886-887; see generally Whelen v. Warwick Val. Civic Social Club, 47 N.Y.2d 970, 971), and defendant failed to raise a triable issue of fact whether plaintiff was working only as a volunteer. The absence of documentation establishing the employment relationship is "insufficient to raise a factual issue as to whether [plaintiff] was `employed' . . . within the meaning of Labor Law § 240 (1)" ( Liverpool v. S.P.M. Envtl., 189 A.D.2d 645, 647). Defendant's unsubstantiated allegations and conclusions lack evidentiary support in the record and thus are insufficient to defeat the motion with respect to liability on the section 240(1) cause of action ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562).