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Supreme Court, Appellate Division, First Department, New York.

Dodanin A. VERA, et al., Plaintiffs-Appellants, v. NYC PARTNERSHIP HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants-Respondents.

Elite Construction, Inc., Third-Party Plaintiff-Respondent, v. CAA Drywall & Painting Co., Third-Party Defendant-Appellant.

Decided: May 24, 2007

SAXE, J.P., NARDELLI, BUCKLEY, SWEENY, MALONE, JJ. Dinkes & Schwitzer, P.C., New York (Souren A. Israelyan of counsel), for Vera appellants. Galvano & Xanthakis, P.C., New York (Matthew D. Kelly of counsel), for CAA Drywall & Painting Co., appellant. Morris Duffy Alonso & Faley, New York (Pauline E. Glaser of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered on or about May 23, 2006, which, to the extent appealed from as limited by the briefs, denied third-party defendant's motion for summary judgment dismissing the third-party complaint and denied plaintiffs' motion for partial summary judgment as to liability on their Labor Law § 240(1) cause of action, unanimously affirmed, without costs.

 Under all of the unique circumstances of this action, as a matter of fairness (see Matter of Hofmann, 287 A.D.2d 119, 123, 733 N.Y.S.2d 168 [2001] ), we decline to give res judicata effect to the Workers' Compensation Board determination, which lists third-party plaintiff as plaintiff's employer.   In light of the conflicting evidence on the record, and the absence of an administrative record to give the Board determination context, the listing is not dispositive, and there is a question of fact on the point.   Nor does the record provide a basis to conclude that plaintiff was third-party defendant's special employee (see Dzieran v. 1800 Boston Rd., LLC, 25 A.D.3d 336, 337, 808 N.Y.S.2d 36 [2006];  cf. Gherghinoiu v. ATCO Props. & Mgt., Inc., 32 A.D.3d 314, 821 N.Y.S.2d 25 [2006], lv. denied 7 N.Y.3d 716, 826 N.Y.S.2d 605, 860 N.E.2d 67 [2006] ).

 Plaintiffs also failed to carry their burden as summary judgment movants.   There is an issue of fact as to whether plaintiff Dodanin Vera deliberately declined to use safety devices which, according to defendants' evidence, were visible and operable (cf. Ramos v. Port Auth. of N.Y. & N.J., 306 A.D.2d 147, 148, 761 N.Y.S.2d 57 [2003] ), and had been used by plaintiff on earlier dates at the same work site.