Opinion
2012-11-7
Anthony PARKER, respondent-appellant, v. 205–209 EAST 57TH STREET ASSOCIATES, LLC, et al., appellants-respondents (and a third-party action).
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner, Eugene T. Boule, Judy C. Selmeci, and Ross B. Barbour of counsel), for appellants-respondents. Gorayeb & Associates, P.C., New York, N.Y. (John M. Shaw of counsel), for respondent-appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner, Eugene T. Boule, Judy C. Selmeci, and Ross B. Barbour of counsel), for appellants-respondents. Gorayeb & Associates, P.C., New York, N.Y. (John M. Shaw of counsel), for respondent-appellant.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated September 1, 2011, as granted that branch of the plaintiff's cross motion which was for summary judgment on the cause of action alleging a violation of Labor Law § 241(6), and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied that branch of his cross motion which was for summary judgment on the cause of action alleging a violation of Labor Law § 240(1).
ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the plaintiff's motion which was for summary judgment on the cause of action alleging a violation of Labor Law § 241(6) is denied; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that, upon searching the record, summary judgment is awarded to the defendants dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6); and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiff, a roofer, was allegedly injured when he fell after stepping through a doorway which was several feet above the level of the lower roof of the building on which he was working. A metal grate was usually placed on the other side of the doorway, so that after opening the door workers could walk across the grate to a set of stairs, and then walk down the stairs onto the lower roof. However, on the date of the incident the grate had been removed, so that the door opened onto an empty space between the doorway and the stairs.
The defendants correctly contend that the court erred in granting that branch of the plaintiff's cross motion which was for summary judgment on the cause of action alleging a violation of Labor Law § 241(6). The plaintiff failed to demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision which sets forth specific safety standards, and is applicable to the facts of the case ( see Norero v. 99–105 Third Ave. Realty, LLC, 96 A.D.3d 727, 945 N.Y.S.2d 720;Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 823 N.Y.S.2d 477). The plaintiff alleges the defendants violated section 23–1.7(b)(1) of the Industrial Code, which applies to hazardous openings. However, the height differential between the edge of the doorway and the lower level of the roof does not constitute a hazardous opening within the meaning of section 23–1.7(b)(1) of the Industrial Code ( see Pope v. Safety & Quality Plus, Inc., 74 A.D.3d 1040, 1041, 903 N.Y.S.2d 124;Rookwood v. Hyde Park Owners Corp., 48 A.D.3d 779, 781, 853 N.Y.S.2d 127;Godoy v. Baisley Lbr. Corp., 40 A.D.3d 920, 923–924, 837 N.Y.S.2d 682).
Although the defendants did not appeal from so much of the order as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), this Court has the authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motion before the Supreme Court ( see Rovelo v. Volcy, 83 A.D.3d 1034, 921 N.Y.S.2d 322;Rivera v. Bushwick Ridgewood Props., 63 A.D.3d 712, 880 N.Y.S.2d 149). Upon searching the record, we award summary judgment to the defendants dismissing the cause of action alleging a violation of Labor Law § 241(6) ( seeCPLR 3212[b] ).
The plaintiff's contention that the Supreme Court erred in denying that branch of his cross motion which was for summary judgment on the cause of action alleging a violation of Labor Law § 240(1) is without merit. The plaintiff failed to establish that the statute was violated and that the violation was a proximate cause of his injuries ( see Norero v. 99–105 Third Ave. Realty, LLC, 96 A.D.3d 727, 945 N.Y.S.2d 720;Robinson v. Goldman Sachs Headquarters, LLC, 95 A.D.3d 1096, 944 N.Y.S.2d 630;Henry v. Eleventh Ave., L.P., 87 A.D.3d 523, 928 N.Y.S.2d 72). The record shows that the plaintiff's injuries did not result from the type of elevation related hazard to which the statute applies ( see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7, 935 N.Y.S.2d 551, 959 N.E.2d 488;Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932;Pope v. Safety & Quality Plus, Inc., 74 A.D.3d 1040, 903 N.Y.S.2d 124;Seaman v. Bellmore Fire Dist., 59 A.D.3d 515, 873 N.Y.S.2d 181;Biafora v. City of New York, 27 A.D.3d 506, 811 N.Y.S.2d 764).
Although the defendants did not appeal from so much of the order as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), upon searching the record, we award summary judgment to the defendants dismissing that cause of action ( seeCPLR 3212[b] ).