Leahy v. Funicello Electric, Inc.

— Order unanimously reversed on the law without costs and motion denied. Memorandum: Special Term erred in granting plaintiffs’ motions for summary judgment against General Electric Company. It is a matter for the court in the first instance to determine whether the activity engaged in by John Leahy falls within the ambit and protection of section 240 of the Labor Law (see, Damato v Goldberg, 120 AD2d 966; DaBolt v Bethlehem Steel Corp., 92 AD2d 70, lv dismissed 60 NY2d 554). Such a determination could not be made here because there are insufficient facts in the record regarding the nature of…