12-354/355. MARK A. SMITH, pla-ap, v. THE GIRLS CLUB OF NEW YORK, def-res — Orders (Irving Rosen, JHO), entered June 16, 2009 and May 19, 2010, affirmed, without costs.

We sustain the denial of plaintiff's motion for partial summary judgment on his (unpleaded) Labor Law §240(1) claim, in the absence of a conclusive showing that plaintiff was an "employee" entitled to the special protections of the statute at the time of the alleged accident (see Stringer v. Musacchia, 11 NY3d 212 [2008]; Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573 [1990]; Pigott v. State of New York, 199 AD2d 734 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.