Roger A. Barczykowski et al., Appellants, v. Benderson Development Company, Inc., Respondent

Roger A. Barczykowski et al., Appellants, v Benderson Development Company, Inc., Respondent. [771 NYS2d 406] [MAJORITY] Appeal from a judgment of the Supreme Court, Erie County (Edward A. Rath, Jr., J.), entered November 8, 2002. The judgment dismissed the complaint in a personal injury action. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs’ motion for partial summary judgment on liability on the Labor Law § 240 (1) claim and granted defendant’s cross motion for summary judgment dismissing that claim on the ground that Roger A. Barczykowski (plaintiff) was not engaged in a protected activity at the time of his accident. Defendant established as a matter of law that the sign that plaintiff had been directed to fix was not illuminated because the light switch was not activated and that plaintiff was aware of that fact. Thus, it cannot be said that plaintiff was engaged in repair work within the meaning of Labor Law § 240 (1) at the time of his accident (see Smith v Shell Oil Co., 85 NY2d 1000, 1001 [1995]). Present— Pigott, Jr., PJ., Wisner, Hurlbutt, Scudder and Kehoe, JJ.