Opinion
March 1, 1999
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from; and it is further,
Ordered that the defendant Rich Nowak Construction Co., Inc., is awarded one bill of costs.
The plaintiff, Frank Holocek, allegedly sustained personal injuries when a wooden plank fell from an upper story at a construction site and struck him in the head. The defendant John Lynn moved for summary judgment, contending that as the owner of the single-family home under construction, he may not be held liable for the plaintiffs injuries pursuant to Labor Law § 240 (1). However, the Supreme Court correctly denied the motion, as there were issues of fact as to whether Lynn, who allegedly served as his own general contractor, exercised direction and control over the work being performed. Furthermore, the court was also correct to deny the plaintiffs motion, inter alia, for summary judgment on the issue of liability as against the defendant Rich Nowak Construction Co., Inc. (hereinafter Nowak), as issues of fact exist as to whether Nowak acted in the capacity of a general contractor or as a subcontractor to Lynn.
Miller, .J. P., Ritter, Goldstein and Luciano, JJ., concur.