Hanvey v. Guardian Angels Church , 765 N.Y.S.2d 300 ( 2003 )

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).

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 AD2d 972, 973 [2001]; see generally Panek v County of Albany, 99 NY2d 452, 457-458 [2003]; Martinez v City of New York, 93 NY2d 322, 326 [1999]; Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108, 1109 [1991]). Present — Green, J.P., Wisner, Gorski and Lawton, JJ.