| Whitehead v City of New York |
| 2010 NY Slip Op 09253 [79 AD3d 858] |
| December 14, 2010 |
| Appellate Division, Second Department |
| Kenneth Whitehead et al., Respondents, v City of New York etal., Appellants-Respondents and Third-Party Plaintiffs-Appellants-Respondents. Steelco-MetropolitanSteel Industries, Third-Party Defendant-Respondent-Appellant. |
—[*1] Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (David C. Zegarelli of counsel), forrespondent-appellant. Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants/third-party plaintiffsappeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County(Solomon, J.), dated September 17, 2009, as denied, as untimely, that branch of their cross motionwhich was for summary judgment on the third-party causes of action for common-law indemnification,and (2), from an order of the same court dated October 26, 2009, which granted the plaintiffs' motionfor summary judgment on the cause of action alleging a violation of Labor Law § 240 (1), and, ineffect, denied, as untimely, that branch of their cross motion in which the third-party defendant joined,which was for summary judgment dismissing that cause of action, and the third-party defendantseparately appeals from the order dated October 26, 2009.
Ordered that the order dated September 17, 2009, is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order dated October 26, 2009, is reversed, on the law and in the exercise ofdiscretion, without costs or disbursements, the plaintiffs' motion for summary judgment on the cause ofaction alleging a violation of Labor Law § 240 (1) is denied, and that branch of the cross motionof the defendants/third-party plaintiffs which was for summary judgment dismissing that cause of actionis granted.
The injured plaintiff, an ironworker employed by nonparty Midlantic Steel Erectors, allegedly wasinjured at a construction site when a load of steel tubes that had just been hoisted by a crane and putdown on the eighth floor of a structure began to roll out while the bindings on the load were beingremoved. The injured plaintiff, who was working on the eighth floor next to the load of steel, tried to runaway; however, he slipped on a puddle of water. The injured plaintiff was struck [*2]in his right knee by two steel tubes. The injured plaintiff and his wife,derivatively, thereafter commenced this action against the owner of the site and the general contractor,respectively, alleging violations of Labor Law § 240 (1), § 241 (6) and § 200, aswell as common-law negligence. The defendants/third-party plaintiffs then impleaded the third-partydefendant, Steelco-Metropolitan Steel Industries, the steel construction subcontractor that had hired theinjured plaintiff's employer to erect the steel at the site, alleging causes of action to recover damages forcontribution and for contractual and common-law indemnification.
Following the completion of discovery, the plaintiffs moved for summary judgment on the issue ofliability on the Labor Law § 240 (1) cause of action. By notice of motion dated 17 days after thedeadline for making summary judgment motions, the defendants/third-party plaintiffs cross-moved forsummary judgment dismissing the Labor Law § 240 (1) cause of action and on their third-partycommon-law indemnification causes of action. In an order dated September 17, 2009, the SupremeCourt denied that branch of the cross motion which was for summary judgment on the third-partycommon-law indemnification causes of action as untimely. In an order dated October 26, 2009, theSupreme Court, in effect, denied that branch of the cross motion which was for summary judgmentdismissing the Labor Law § 240 (1) cause of action as untimely and granted the plaintiffs' motion,determining that the injured plaintiff was engaged in the type of elevation-related risk contemplated bythe statute.
The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on theissue of liability on the Labor Law § 240 (1) cause of action because the injured plaintiff was notsubject to an elevation-related hazard for which the protective devices enumerated in Labor Law§ 240 (1) are required. Under the undisputed facts, the load of steel was "not elevated above thework site, but rather was at the same level as the [injured] plaintiff" (Cruz v Neil Hospitality, LLC, 50 AD3d619, 620 [2008]; see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 270 [2001];Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909, 911-912 [1998]; Ramos v Champion Combustion, Inc., 12AD3d 227 [2004]; Jacome v State of New York, 266 AD2d 345 [1999]). "[The injuredplaintiff] in this case was exposed to the usual and ordinary dangers of a construction site, and not theextraordinary elevation risks envisioned by Labor Law § 240 (1)" (Rodriguez v MargaretTietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]; see Jacome v State of NewYork, 266 AD2d at 347). Accordingly, the Supreme Court erred in granting the plaintiffs' motion.
Although that branch of the cross motion of the defendants/third-party plaintiffs which was forsummary judgment dismissing the Labor Law § 240 (1) cause of action was not timely made, "anuntimely motion or cross motion for summary judgment may be considered by the court where, as here,a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590,591-592 [2007]; see Lennard v Khan,69 AD3d 812 [2010]; Bressingham vJamaica Hosp. Med. Ctr., 17 AD3d 496, 497 [2005]; Boehme v A.P.P.L.E. A ProgranPlanned For Life Enrichment, 298 AD2d 540 [2002]). "Notably, the court, in the course ofdeciding the timely motion, is, in any event, empowered to search the record and award summaryjudgment to a nonmoving party" (Grande v Peteroy, 39 AD3d at 592). The Supreme Courtshould therefore have entertained that branch of the cross motion which was for summary judgmentdismissing the Labor Law § 240 (1) cause of action and, upon addressing the merits of thatbranch of the cross motion, should have granted it. The defendants/third-party plaintiffs established theirprima facie entitlement to judgment as a matter of law demonstrating that the injured plaintiff was notsubject to an elevation-related hazard for which the protective devices enumerated in Labor Law§ 240 (1) are required (see Narducci v Manhasset Bay Assoc., 96 NY2d at 268-270;Melo v Consolidated Edison Co. of N.Y., 92 NY2d at 910; Garcia v Edgewater Dev. Co., 61 AD3d924 [2009]). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the steelmembers fell from an elevated level to bring the accident within the purview of Labor Law § 240(1) (see Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d at 843; Cruz v NeilHospitality, LLC, 50 AD3d at 620).
The Supreme Court's search of the record is limited to those causes of action or issues that are thesubject of the timely motion (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430[1996]), and the defendants/third-party plaintiffs offered no excuse to the Supreme Court for theirdelay in filing that branch of the cross motion which was for summary judgment on the third-party causeof action for [*3]common-law indemnification, which was not made on"nearly identical grounds" as the timely motion (Grande v Peteroy, 39 AD3d at 592).Therefore, the Supreme Court providently exercised its discretion in denying, as untimely, that branchof the cross motion. The defendants/third-party plaintiffs now assert that good cause existed basedupon the plaintiffs' failure to serve the note of issue upon substitute counsel. However, this argument isimproperly raised for the first time on appeal (see Birch Hill Farm v Reed, 272 AD2d 282[2000]). An appellate court should not, and will not, consider different theories or new questions, if theopposing party might have offered proof to refute or overcome them had those theories or questionsbeen presented in the court of first instance (see Fresh Pond Rd. Assoc. v Estate of Schacht,120 AD2d 561 [1986]). Rivera, J.P., Angiolillo, Roman and Sgroi, JJ., concur.