Opinion
CA 03-00379
October 2, 2003.
CHAMBERLAIN, D'AMANDA, OPPENHEIMER GREENFIELD, ROCHESTER (K. WADE EATON OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
CHARLES A. HALL, ROCHESTER, FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of Supreme Court, Monroe County (Frazee, J.), entered December 6, 2002, which, inter alia, denied plaintiffs' cross motion for partial summary judgment on liability under Labor Law 240(1).
PRESENT: GREEN, J.P., WISNER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiffs commenced this action to recover for injuries sustained by Kenneth S. Hanvey (plaintiff) when he fell through a skylight in the roof of a church/school owned by defendants. Supreme Court properly denied plaintiffs' cross motion for partial summary judgment on liability under Labor Law 240(1). Upon our review of the record, we conclude that there is a triable issue of fact concerning whether plaintiff was engaged in a protected activity at the time of his fall ( see Short v. Durez Div.-Hooker Chems. Plastic Corp., 280 A.D.2d 972, 973; see generally Panek v. County of Albany, 99 N.Y.2d 452, 457-458; Martinez v. City of New York, 93 N.Y.2d 322, 326; Gibson v. Worthington Div. of McGraw-Edison Co., 78 N.Y.2d 1108, 1109).