
    Patrick Dillon et al., Appellants, v Van Cortlandt Sports, Inc., Respondent and Third-Party Plaintiff-Respondent. Arch Contracting and Waterproofing Co., Third-Party Defendant-Respondent.
    [650 NYS2d 554]
   —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.

The affidavits, including those of independent witnesses, submitted by plaintiffs in support of the motion, as well as plaintiff’s 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). Concur—Milonas, J. P., Wallach, Kupferman, Ross and Williams, JJ.  