Falco v. Roth

267 A.D.2d 422, 704 N.Y.S.2d 478, 1999 N.Y. App. Div. LEXIS 13312

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Davis, J.), dated October 28, 1998, which granted the defendants’ motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court, dated December 21, 1998, as, in effect, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated October 28, 1998, is dismissed, as that order was superseded by the order dated December 21, 1998, made upon reargument; and it is further,

Ordered that the order dated December 21, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

The defendants made out a prima facie case for summary judgment, and the plaintiffs did not submit evidence establishing the existence of a material issue of fact. The plaintiffs failed to establish that the defendants controlled, directed, or supervised the work that the plaintiff Michael Falco performed on the defendants’ home. Therefore, the defendants are entitled to the statutory homeowner exemption afforded under Labor Law § 240 (1) and § 241 (6) (see, Diltz v Bowman, 246 AD2d 623, 624). Furthermore, the plaintiff Michael Falco was injured by a dangerous condition that he created himself (see, Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877-878; Lombardi v Stout, 80 NY2d 290, 295). For all of the foregoing reasons, the defendants are entitled to summary judgment. Bracken, J. P., Joy, Goldstein and Florio, JJ., concur.