Opinion
986 CA 18–00362
11-09-2018
Charles E. LORD, Plaintiff–Respondent, v. WHELAN AND CURRY CONSTRUCTION SERVICES, INC., Feldmeier Equipment, Inc., and 6800 Townline Road Partnership, Defendants–Appellants.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (EDWARD J. SMITH, III, OF COUNSEL), FOR DEFENDANTS–APPELLANTS. POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), AND WEGENSKI LAW FIRM, BREWERTON, FOR PLAINTIFF–RESPONDENT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (EDWARD J. SMITH, III, OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
POWERS & SANTOLA, LLP, ALBANY (MICHAEL J. HUTTER OF COUNSEL), AND WEGENSKI LAW FIRM, BREWERTON, FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the third ordering paragraph, and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this Labor Law and common-law negligence action to recover damages for injuries that he sustained when he fell through a roof while working on a demolition project. Defendants contend that Supreme Court erred in granting plaintiff's cross motion for partial summary judgment on the issue of liability with respect to the Labor Law § 240(1) cause of action. We reject that contention. Plaintiff established that defendants' failure to provide adequate fall protection was a proximate cause of the accident (see Calderon v. Walgreen Co., 72 A.D.3d 1532, 1533, 900 N.Y.S.2d 533 [4th Dept. 2010], appeal dismissed 15 N.Y.3d 900, 912 N.Y.S.2d 568, 938 N.E.2d 1002 [2010] ). In opposition, defendants failed to raise an issue of fact whether plaintiff's own negligence was the "sole proximate cause" of his injuries, in particular, whether safety harnesses "were readily available at the work site, albeit not in the immediate vicinity of the accident" ( Gallagher v. New York Post, 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ; cf. Scruton v. Acro–Fab Ltd., 144 A.D.3d 1502, 1503, 40 N.Y.S.3d 864 [4th Dept. 2016] ). Thus, we likewise reject defendants' contention that plaintiff was the sole proximate cause of his injuries and that the court therefore erred in denying their motion for summary judgment dismissing the complaint.
We agree with defendants, however, that the court erred in searching the record and granting summary judgment to plaintiff on his Labor Law § 241(6) cause of action, and we therefore modify the order accordingly. Contrary to plaintiff's assertion, although defendants did not advance their contention before the trial court, we conclude that the contention is properly before us because defendants lacked an opportunity to raise it at any time before this appeal (cf. Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). Further, " ‘[a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense’ " ( Miller v. Mott's Inc., 5 A.D.3d 1019, 1020, 773 N.Y.S.2d 727 [4th Dept. 2004] ; see Sadkin v. Raskin & Rappoport, P.C., 271 A.D.2d 272, 273, 707 N.Y.S.2d 400 [1st Dept. 2000] ). Here, the only issue raised with respect to the Labor Law § 241(6) cause of action was on defendants' motion, wherein they asserted that dismissal was warranted on the ground that plaintiff was the sole proximate cause of his injuries. The court therefore erred in granting summary judgment to plaintiff based on alleged violations of 12 NYCRR 23–1.7(b)(1)(c) and 23–3.3(c).