Justice John Egan Jr.

Worker Landon and employer Austin both appealed the order which granted Austin Construction Inc. (ACI) summary judgment dismissing the complaint against it. Landon fell from the edge of a roof while working for Austin on a single-family residence he owned, injuring his right leg. Supreme Court granted Landon’s motion for partial summary judgment on his Labor Law §240(1) claim against Austin, but granted ACI’s motion for dismissal. This court noted it could not state ACI met its burden by showing it was neither a contractor, owner or agent and did not have the right to exercise control over the work. It noted while Austin hired and paid Landon, it was unclear if he was acting in his individual or corporate capacity as Landon acknowledge he previously worked for both Austin and ACI in the past. Also, Austin testified most of the tools and equipment on the site belonged to ACI, and the remaining workers on the site were ACI employees. Thus, questions of fact as to ACI’s status as a contractor or agent preclude an award of summary judgment in its favor regarding Landon’s §240(1) claim. Those same questions, the court ruled, mandated denial of Landon’s cross-motion for summary judgment. Hence, Landon’s complaint was reinstated against ACI.