Schwartz v. Foley
| Decision Date | 11 July 1988 |
| Citation | 142 A.D.2d 635,530 N.Y.S.2d 281 |
| Parties | Paul SCHWARTZ, et al., Appellants, v. Carol FOLEY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
MacCartney, MacCartney, Karrigan & MacCartney, Nyack (Francesca A. Connolly, of counsel), for appellants.
Bouck, Holloway, Kiernan and Casey, Albany (William B. Joint, of counsel), for respondent.
Before MOLLEN, P.J., and THOMPSON, RUBIN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Nelson, J.), dated November 17, 1987, which, upon granting the defendant's motion for summary judgment dismissing the complaint and denying the plaintiffs' cross motion for partial summary judgment in an order of the same court, dated October 14, 1987, is in favor of the defendant and against them. The plaintiffs' notice of appeal from the order of the same court dated October 14, 1987, is deemed a premature notice of appeal from the judgment (CPLR 5520).
ORDERED that the judgment is affirmed, with costs.
The plaintiff Paul Schwartz, a self-employed painter, was hired by the defendant to paint the exterior of the defendant's one-family residence in Suffern, New York, which was in the process of being renovated. Mr. Schwartz used all of his own materials and provided the necessary equipment to complete the paint job. On May 3, 1986, the scaffolding, which Mr. Schwartz had rented and erected on the west side of the defendant's residence collapsed, causing Mr. Schwartz to fall and sustain personal injuries.
Thereafter, Mr. Schwartz and his wife commenced the instant action claiming that the defendant violated the absolute liability provision of Labor Law § 240(1). That statutory provision provides, inter alia:
(emphasis supplied).
The Supreme Court, upon the defendant's motion, granted the defendant summary judgment dismissing the complaint on the basis that the defendant fell within the exception of the aforesaid statutory provision which applies to "owners of one and two-family dwellings who contract for but do not direct or control the work". We agree with the Supreme...
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