I respectfully dissent. The majority’s determination that section 29 (6) of the Workers’ Compensa*941tion Law is not a bar to plaintiff’s Labor Law § 240 (1) cause of action is premised on a determination that defendant made no showing that "Gaines was acting within the scope of his employment with Gaines Electrical at the time plaintiff was injured, or that Gaines Electrical had an ownership interest in or exercised control over the farmhouse” (emphasis added). The majority is correct in its determination that Gaines Electrical had no ownership interest in the farmhouse; however, the record and the majority’s memorandum decision establish that there is no issue of fact that Gaines was a coemployee of plaintiff and that Gaines and his company supervised the method and the manner of plaintiff’s work on the farmhouse roof.
There is no doubt that plaintiff was working within the scope of his employment; the record establishes that he applied for and received workers’ compensation benefits as a result of his fall. During his work at the farmhouse, he continued to report his hours in the same manner as he had on the warehouse job and he was paid the same wage rate he had previously negotiated with Gaines Electrical. On several days, plaintiff worked at the farmhouse only to return to work at the warehouse when that job required his skills. According to plaintiff’s deposition testimony, plaintiff was supervised on both jobs by a foreman/employee of Gaines Electrical and by Gaines personally. All the materials used at the farmhouse were purchased by Gaines Electrical.
"Coemployee immunity is only justified when the tortfeasor’s conduct is within the course of employment; otherwise, the coemployee’s employment status is unconnected to the risk of injury to the fellow-worker from an industrial accident” (Cusano v Staff 191 AD2d 918, 919, citing 2A Larson, Workmen’s Compensation § 72.23). The record establishes that Gaines was the chief executive officer of plaintiff’s corporate employer. The injury sustained by plaintiff occurred at a job site where his work was controlled and directed by his employer. That fact serves as the basis for the majority’s determination that plaintiff is entitled to summary judgment on his Labor Law § 240 (1) cause of action. Gaines Electrical had an obligation to provide its employees with a safe place to work (see, Cusano v Staff, supra, at 919). Gaines was the owner of the farmhouse and had a statutory obligation to provide a safe place for plaintiff to work when he directed the manner and the method of the work (see, Labor Law § 240 [1]; Cusano v Staff, supra, at 919-920). "[T]he defendant had indistinguishable responsibilities, as an executive employee and as a prop*942erty owner, for safety precautions to avoid the plaintiff’s injury” (Cusano v Staff, supra, at 920, citing Lindner v Kew Realty Co., 113 AD2d 36, 44).
Gaines did not divest himself of his status as plaintiff’s coemployee when he directed plaintiff’s work (for which plaintiff received company pay) on property owned by Gaines individually. "Regardless of his status as owner of the premises where the injury occurred, [Mr. Gaines] remains a coemployee in his relations with plaintiff in all matters arising from and connected with their employment” (Heritage v Van Patten, 59 NY2d 1017, 1019; see also, Mesa v Violante, 204 AD2d 610). This case is indistinguishable from Heritage and its progeny that have imposed the restrictions of Workers’ Compensation Law § 29 (6) in situations where the tortfeasor’s conduct is within the course of employment; the injury occurs at a work site controlled or owned by the employer; and the executive employee/owner has indistinguishable duties for safety precautions to avoid plaintiff’s injury (see, Heritage v Van Patten, supra; Cusano v Staff, supra; Lindner v Kew Realty Co., supra). Plaintiff has applied for and received workers’ compensation benefits. I am constrained to dissent in light of the Court of Appeals’ determination in Heritage that, tó my mind, prohibits the result reached by the majority. (Appeal from Order of Supreme Court, Niagara County, Koshian, J.—Summary Judgment.) Present—Green, J. P., Balio, Wesley, Callahan and Boehm, JJ.