Opinion
CA 03-01005.
November 21, 2003.
Appeal from that part of an order of Supreme Court, Steuben County (Furfure, J.), entered November 13, 2002, that granted plaintiffs' cross motion seeking partial summary judgment on liability on the cause of action under Labor Law § 240 (1) and dismissal of defendant's affirmative defenses alleging plaintiff's culpable conduct and assumption of risk.
Law Offices of Charles G. Di Pasquale, Buffalo (Leo T. Fabrizi of Counsel), for Defendant-Appellant.
William J. Lodico, Elmira, for Plaintiffs-Respondents.
Before: Present: Pigott, Jr., P.J., Green, Scudder, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of plaintiffs' cross motion seeking partial summary judgment on liability on the Labor Law § 240 (1) cause of action and as modified the order is affirmed without costs.
Memorandum: Defendant, the owner of the property where Patrick O. Holiday (plaintiff) was injured, appeals from that part of an order that granted plaintiffs' cross motion seeking partial summary judgment on liability on the cause of action under Labor Law § 240 (1) and dismissal of defendant's affirmative defenses alleging plaintiff's culpable conduct and assumption of risk. We agree with defendant that Supreme Court erred in granting that part of the cross motion seeking partial summary judgment on liability under section 240(1). There are triable issues of fact concerning whether plaintiff was engaged in an activity protected under the statute at the time of the accident ( see Hanvey v. Guardian Angels Church of Rochester, 309 A.D.2d 1200 [Oct. 2, 2003]; Short v. Durez Div.-Hooker Chems. Plastic Corp., 280 A.D.2d 970, 972-973), more particularly, whether he was engaged in the "cleaning * * * of a building" (§ 240 [1]; see generally Stanley v. Carrier Corp., 303 A.D.2d 1022; Vasey v. Pyramid Co. of Buffalo, 258 A.D.2d 906, 906-907; Roldan v. Molyneux, 227 A.D.2d 240), or whether he was merely engaged in "routine cleaning in a nonconstruction, nonrenovation context" ( Chavez v. Katonah Mgt. Group, 305 A.D.2d 358, 359; see Machado v. Triad III Assoc., 274 A.D.2d 558, 559, lv denied 96 N.Y.2d 702; Williams v. Perkins Rests., 245 A.D.2d 1128, lv denied 92 N.Y.2d 804, 921). We reject the contention of defendant, however, that the court erred in granting that part of the cross motion seeking dismissal of his affirmative defenses ( see Bland v. Manocherian, 66 N.Y.2d 452, 461; Oaks v. Pioneer Dev. Co., 294 A.D.2d 897; Colern v. State of New York, 170 A.D.2d 1000, 1001-1002). Thus, we modify the order by denying that part of plaintiffs' cross motion seeking partial summary judgment on liability on the Labor Law § 240 (1) cause of action.