Opinion
December 27, 2000.
Appeal from Order of Supreme Court, Cattaraugus County, Cosgrove, J. — Summary Judgment.
PRESENT: PIGOTT, JR., P. J., GREEN, PINE, KEHOE AND BALIO, JJ.
Order unanimously affirmed with costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when he fell from a utility pole jointly owned by defendant and third-party defendant. Supreme Court properly granted plaintiff's motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and denied those parts of the cross motions of defendant and third-party defendant seeking summary judgment dismissing that cause of action. Plaintiff met his initial burden by submitting proof establishing that his injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk ( see, Raczka v. Nichter Util. Constr. Co., 272 A.D.2d 874), and neither defendant nor third-party defendant raised a triable issue of fact whether plaintiff's actions were the sole proximate cause of the accident ( see, Evans v. Anheuser-Busch, Inc., 277 A.D.2d 874 [decided Nov. 13, 2000]).
We reject the contention of third-party defendant that plaintiff is not entitled to the protection of Labor Law § 240 (1) because he was in training when he was injured. Plaintiff was employed as a service technician for third-party defendant and was engaged in on-the-job training at the direction of third-party defendant. At the time of the accident, plaintiff was "both `employed' and an `employee' within the terms of the statute" and is within the class of persons entitled to its protection ( Yearke v. Zarcone, 57 A.D.2d 457, 460, lv denied 43 N.Y.2d 643; cf., Whelen v. Warwick Val. Civic Social Club, 47 N.Y.2d 970, 971).
Third-party defendant's remaining contention is raised for the first time on appeal and thus is not properly before us ( see, Cole v. Metropolitan Life Ins. Co., 273 A.D.2d 832, 834).