Opinion
November 21, 1994
Appeal from the Supreme Court, Richmond County (Amann, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Contrary to the plaintiff's contention, the Supreme Court properly determined that there are questions of fact which preclude an award of partial summary judgment in his favor on the issue of liability pursuant to Labor Law § 240 (1). Indeed, a factual issue exists with regard to whether the plaintiff refused to make use of an available safety device provided by his employer, a circumstance which might bar recovery under the statute (see generally, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555; Cannata v. One Estate, 127 A.D.2d 811). Likewise, there is a question of fact with respect to which of the various defendants would qualify as owners of the premises under Labor Law § 240 (1). We note that the term "owner" has been held to include, inter alia, those entities with interests in the property which have the right, as a practical matter, to hire and fire the subcontractors and to insist that proper safety practices are followed (see generally, Wendel v. Pillsbury Corp., 205 A.D.2d 527; Mangiameli v. Galante, 171 A.D.2d 162; DeFreece v. Penny Bag, 137 A.D.2d 744). In this regard, it is possible that both the entity which owns the billboard on which the plaintiff was working and the entity which owns the property upon which the billboard was erected could properly be considered "owners" under the Labor Law (see, Gordon v. Eastern Ry. Supply, supra; Ampolini v. Long Is. Light. Co., 186 A.D.2d 772).
The defendants' remaining contentions regarding the inapplicability of Labor Law § 240 (1) are without merit.
The defendants Long Island Railroad and Ammni-America, Inc. failed to demonstrate that they lacked the authority to direct or control the plaintiff's work so as to relieve them of any potential liability under Labor Law § 200 and for common-law negligence (see generally, Edwards v. Twenty-Four Twenty-Six Main St. Assocs., 195 A.D.2d 592; Copertino v. Ward, 100 A.D.2d 565).
With respect to the parties' remaining contentions, we discern no basis for disturbing the Supreme Court's determination that issues of fact exist which preclude summary judgment. Sullivan, J.P., Rosenblatt, Pizzuto and Altman, JJ., concur.