| Grabowski v Consolidated Edison Co. of N.Y., Inc. |
| 2010 NY Slip Op 03277 [72 AD3d 888] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Jerzy Grabowski, Respondent, v Consolidated EdisonCompany of New York, Inc., Defendant, and D'Onofrio General Contractors Corp., DoingBusiness as D'Onofrio General Contractors Corporation, Appellant. |
—[*1] Dinkes & Schwitzer, P.C., New York, N.Y. (Naomi Skura of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant D'Onofrio GeneralContractors Corp., d/b/a D'Onofrio General Contracting Corporation, appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March19, 2009, as granted the plaintiff's motion for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1), and denied that branch of itscross motion which was for summary judgment dismissing that cause of action insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs to theappellant payable by the plaintiff, the plaintiff's motion for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1) is denied, thatbranch of the appellant's cross motion which was for summary judgment dismissing that cause ofaction insofar as asserted against it is granted, and, upon searching the record, summaryjudgment is awarded to the defendant Consolidated Edison Company of New York, Inc.,dismissing that cause of action insofar as asserted against it.
The plaintiff was injured at a construction site when he fell from a wooden bench whichprovided access to a job site trailer. The door to the trailer was approximately two to three feetoff the ground, and the seat of the bench was midway between the door and the ground. Thebench toppled over when the plaintiff stepped onto it while exiting the trailer, causing him tofall.
The appellant made a prima facie showing of entitlement to judgment as a matter of law withrespect to the cause of action alleging a violation of Labor Law § 240 (1) bydemonstrating that the bench from which the plaintiff fell was used as a passageway or stairwayfor the trailer and, as such, did not come within the purview of Labor Law § 240 (1) (see Donohue v CJAM Assoc., LLC, 22AD3d 710, 711-712 [2005]; Paul vRyan Homes, 5 AD3d 58, 60 [2004]; Straight v McCarthy Bros. Co., 222 AD2d775, 776 [1995]). In opposition, the plaintiff failed to raise a triable issue of fact (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Courtshould have denied the plaintiff's motion for summary judgment on the issue of liability on thecause of action alleging a [*2]violation of Labor Law §240 (1), and granted that branch of the appellant's cross motion which was for summaryjudgment dismissing the Labor Law § 240 (1) cause of action insofar as asserted against it.
This Court has the authority to search the record and award summary judgment to anonmoving party with respect to an issue that was the subject of the motion before the SupremeCourt (see Rivera v Port Auth. of N.Y.& N.J., 69 AD3d 917 [2010]). Accordingly, under the circumstances, in light of theinapplicability of Labor Law § 240 (1) to the facts of this case, summary judgment isawarded to the defendant Consolidated Edison Company of New York, Inc., dismissing thecause of action alleging a violation of Labor Law § 240 (1) insofar as asserted against it.Rivera, J.P., Florio, Miller and Eng, JJ., concur.