Opinion
February 10, 1999
Appeal from Order of Supreme Court, Niagara County, Pigott, Jr., J. — Summary Judgment.
PRESENT: DENMAN, P. J., PINE, HAYES, WISNER AND CALLAHAN, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Carl E. Mowers (plaintiff), an employee of third-party defendant, Village of Youngstown (Village), commenced this action to recover damages for injuries that he sustained when he fell from a ladder while working with defendant, an electrician, on a building owned by the Village. Defendant was hired by the Village to install lighting in the attic of the Village Center. Plaintiff was assigned by his supervisor to assist defendant in order to reduce costs. Plaintiff retrieved defendant's tool belt from the attic during the cleanup of the worksite and was descending the ladder from the attic when he fell.
Although Supreme Court properly denied plaintiffs' motion for partial summary judgment on the Labor Law § 240 Lab. (1) claim, the court erred in granting those parts of the cross motions of defendant and the Village for summary judgment dismissing that claim and the Labor Law § 241 Lab. (6) claim on the ground that defendant was not a contractor. There is a triable issue of fact whether defendant had the authority to supervise and control plaintiff in connection with the cleanup of the worksite ( see, Outwater v. Ballister, ___ A.D.2d ___ [decided Sept. 3, 1998]; Dose v. Jenn-Matt Corp., 239 A.D.2d 899). While there is proof that the Village elected to have the cleanup performed by its own employee rather than by defendant ( see, Filchuk v. Lehrer McGovern Bovis Constr., 232 A.D.2d 329), there is also proof that defendant generally was in charge of the project, that plaintiff acted at defendant's direction in "most situations", that cleaning up was "part of completing the job", and that, before the accident, defendant told plaintiff to clean up the attic and bring down the tools. Furthermore, there is proof that the Village assigned plaintiff to assist defendant because defendant asked for him.
Plaintiff's remaining contention is not encompassed by the notice of appeal, and we decline to review it in the interest of justice ( see, McSparron v. McSparron, 87 N.Y.2d 275, 282, rearg dismissed 88 N.Y.2d 916). We thus modify the order by denying in part the cross motions and reinstating the Labor Law § 240 Lab. (1) and § 241 Lab. (6) claims