| Ponce-Francisco v Plainview-Old Bethpage Cent. SchoolDist. |
| 2011 NY Slip Op 02859 [83 AD3d 683] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Estaban Ponce-Francisco, Appellant, v Plainview-OldBethpage Central School District, Respondent. |
—[*1] Cascone & Kluepfel LLP, Garden City, N.Y. (Michael T. Reagan of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Parga, J.), dated December 4, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint and denied his cross motionfor summary judgment on the issue of liability on the causes of action alleging a violation ofLabor Law § 240 (1).
Ordered that the appeal from so much of the order as granted those branches of thedefendant's motion which were for summary judgment dismissing the causes of action to recoverdamages for common-law negligence and a violation of Labor Law § 200 is dismissed, asthe plaintiff is not aggrieved thereby (see CPLR 5511); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the defendant's motion which were for summary judgment dismissing thecauses of action alleging violations of Labor Law § 240 (1) and § 241 (6), andsubstituting therefor a provision denying those branches of the motion; as so modified, the orderis affirmed insofar as reviewed, without costs or disbursements.
While working for a contractor hired to remove and replace various areas of the roof of aschool owned by the defendant, the plaintiff allegedly was injured when he fell through a skylightlocated in a higher area of the roof that was not part of the subject project. The plaintiffcommenced this action against the defendant, asserting causes of action to recover damages forcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and §241 (6).
As a threshold matter, the appeal from so much of the order as granted those branches of thedefendant's motion which were for summary judgment dismissing the causes of action to recoverdamages for common-law negligence and a violation of Labor Law § 200 must bedismissed. The plaintiff did not oppose those branches of the motion and, therefore, is notaggrieved by the order to the extent that it granted them (see CPLR 5511; see also Giraldo v Morrisey, 63 AD3d784, 785 [2009]; Ciaccio v Germin, 138 AD2d 664, 665 [1988]).[*2]
Contrary to the defendant's contention, the defendant'ssubmissions in support of those branches of its motion which were for summary judgmentdismissing the causes of action alleging violations of Labor Law § 240 (1) and § 241(6) failed to establish, prima facie, that the plaintiff was not entitled to the protection of thosestatutes (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-882 [2003];Covey v Iroquois Gas Transmission Sys., 89 NY2d 952, 954 [1997]; Danielewski v Kenyon Realty Co., 2AD3d 666, 667 [2003]; Rivera v Squibb Corp., 184 AD2d 239, 239 [1992]; cf. Ferenczi v Port Auth. of N.Y. &N.J., 34 AD3d 722, 724 [2006]; Morra v White, 276 AD2d 536, 537 [2000];Houchang Haghighi v Bailer, 240 AD2d 368, 368 [1997]; Santos v 304 W. 56th St. Realty LLC,21 Misc 3d 174, 178-179 [2008]). Accordingly, the Supreme Court should have denied thosebranches of the defendant's motion. The defendant's alternative argument in support of summaryjudgment dismissing the foregoing causes of action is raised for the first time on appeal and,thus, is not properly before this Court (Terranova v Waheed Brokerage, Inc., 78 AD3d 1040 [2010]).
The plaintiff's submissions in support of his cross motion for summary judgment on the issueof liability on the causes of action alleging a violation of Labor Law § 240 (1) presentedtriable issues of fact as to whether the defendant violated the statute or whether, on the otherhand, the plaintiff's own actions were the sole proximate cause of his accident (see Blake v Neighborhood Hous. Servs. ofN.Y. City, 1 NY3d 280, 290 [2003]; see also Mariani v New Style Waste RemovalCorp., 269 AD2d 367, 367 [2000]). Accordingly, the Supreme Court properly denied thecross motion.
We decline the plaintiff's request to search the record and award him summary judgment onthe issue of liability with respect to the causes of action alleging a violation of Labor Law§ 241 (6). Covello, J.P., Dickerson, Eng and Sgroi, JJ., concur.