Opinion
December 3, 1996.
Order, Supreme Court, Bronx County (Anne Targum, J.), entered February 8, 1996, which denied plaintiffs' motion for summary judgment as to liability under Labor Law § 240 (1), unanimously affirmed, with costs.
Before: Milonas, J.P., Wallach, Kupferman, Ross and Williams, JJ.
The affidavits, including those of independent witnesses, submitted by plaintiffs in support of the motion, as well as plaintiffs deposition excerpts submitted by defendant and third-party defendant in opposition thereto, consistently demonstrate that the injured plaintiff's unprotected fall from the ladder constitutes a violation of Labor Law § 240 (1) for which summary judgment would be appropriate ( see, Guillory v Nautilus Real Estate, 208 AD2d 336, appeal dismissed and lv denied 86 NY2d 881). However, triable factual issues exist on this record, which include whether the injured plaintiff was a special employee of defendant at the time of the occurrence, whether he was in fact an employee at all and whether his employment was a sham which would preclude him from maintaining this action ( see, Rothenberg v Erie Metal Stamping Co., 204 AD2d 249, lv dismissed 84 NY2d 1026).