Linn v. DeMayo

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated August 7, 1997, as (1) granted that branch of the motion of the defendant Mary L. DeMayo which was for summary judgment dismissing their second cause of action alleging a violation of Labor Law § 240 (1), and (2) denied their cross motion for summary judgment on the second cause of action. Ordered that the order is affirmed insofar as appealed from, with costs. Contrary to the plaintiffs’ contention, the Supreme Court properly dismissed the Labor Law § 240 (1) cause of action on the basis that the decedent was not engaged in “altering” a structure at the time of the accident (see, Joblon v Solow, 91 NY2d 457; Kesselbach v Liberty Haulage, 182 AD2d 741; cf, Malsch v City of New York, 232 AD2d 1). Thompson, J. P., Krausman, Friedmann and Luciano, JJ., concur.