WHITE v. WOLCOTT MOBILE HOMES INC (1999)

Supreme Court erred in granting that part of plaintiffs' cross motion seeking summary judgment on liability on the Labor Law § 240(1) cause of action and denying those parts of the motion of defendant and cross motion of third-party defendant seeking summary judgment dismissing that cause of action.   The alleged accident is not covered by that statute (see, Puckett v. County of Erie [appeal No. 1], 262 A.D.2d 964, 693 N.Y.S.2d 780).

The court properly denied, however, those parts of the motion of defendant and the cross motion of third-party defendant for summary judgment dismissing the Labor Law § 241(6) cause of action.   We modify the order, therefore, by granting those parts of the motion of defendant and the cross motion of third-party defendant seeking summary judgment dismissing the Labor Law § 240(1) cause of action.   We dismiss the appeal from the order insofar as it granted in part plaintiffs' cross motion seeking summary judgment on liability on the Labor Law § 240(1) cause of action because that part of the order is subsumed in the judgment (see, Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 529 N.Y.S.2d 658;  see also, Chase Manhattan Bank v. Roberts & Roberts, 63 A.D.2d 566, 567, 404 N.Y.S.2d 608;  CPLR 5501[a][1] ).

Appeal from order insofar as it granted in part plaintiffs' cross motion unanimously dismissed and order modified on the law and as modified affirmed without costs.

MEMORANDUM: