Alvino v. Adler

—In an action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Saladino, J.), dated June 9, 1993, which denied his motion for summary judgment, and (2) from so much of an order of the same court, dated October 5, 1993, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated June 9, 1993, is dismissed, as that order was superseded by the order dated October 5,1993, made upon reargument; and it is further,

Ordered that the order dated October 5, 1993, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiff moved for summary judgment on his claim pursuant to Labor Law § 240 (1). We agree with the Supreme Court that there remains an issue of fact as to the defendants’ intended use of the premises at issue and, thus, whether they are entitled to rely upon the exception from liability under Labor Law § 240 (1) granted to owners of one and two family dwellings (see, Lombardi v Stout, 80 NY2d 290). Thompson, J. P., Miller, O’Brien, Santucci and Joy, JJ., concur.