HOLM v. METCALF EDDY, INC

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Under the facts of this case the injured plaintiff was not a person entitled to the protection of the Labor Law. He was neither "permitted or suffered to work on a building or structure" ( Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576), nor was he performing work necessary and incidental to the erection or repair of a building or structure ( see Lombardi v. Stout, 80 N.Y.2d 290). Accordingly, the Labor Law claims against the respondents, B Q Construction Corp. and Halcyon Construction Corp., were properly dismissed ( see Kopp v. Flagg Props., 302 A.D.2d 367, 367-368).

Additionally, the common-law negligence claim was also properly dismissed against the respondents since they established prima facie entitlement to summary judgment, and in response, the plaintiffs failed to raise a triable issue of material fact to rebut this prima facie showing ( see Alvarez v. Prospect Hosp. 68 N.Y.2d 320; Grgas v. Lehrer McGovern Bovis, 307 A.D.2d 982, 983).

The plaintiffs' remaining contentions are without merit.

KRAUSMAN, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.