| Parker v 205-209 E. 57th St. Assoc., LLC |
| 2012 NY Slip Op 07281 [100 AD3d 607] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Anthony Parker, Respondent-Appellant, v 205-209 East57th Street Associates, LLC, et al., Appellants-Respondents. (And a Third-PartyAction.) |
—[*1] Gorayeb & Associates, P.C., New York, N.Y. (John M. Shaw of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), datedSeptember 1, 2011, as granted that branch of the plaintiff's cross motion which was for summaryjudgment on the cause of action alleging a violation of Labor Law § 241 (6), and theplaintiff cross-appeals, as limited by his brief, from so much of the same order as denied thatbranch of his cross motion which was for summary judgment on the cause of action alleging aviolation of Labor Law § 240 (1).
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of theplaintiff's motion which was for summary judgment on the cause of action alleging a violation ofLabor 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 defendantsdismissing 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 doorwaywhich was several feet above the level of the lower roof of the building on which he wasworking. A metal grate was usually placed on the other side of the doorway, so that after openingthe door workers could walk across the grate to a set of stairs, and then walk down the stairs ontothe lower roof. However, on the date of the incident the grate had been removed, so that the dooropened onto an empty space between the doorway and the stairs.[*2]
The defendants correctly contend that the court erred ingranting that branch of the plaintiff's cross motion which was for summary judgment on thecause of action alleging a violation of Labor Law § 241 (6). The plaintiff failed todemonstrate that his injuries were proximately caused by a violation of an Industrial Codeprovision 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 AD3d 727 [2012]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006]). Theplaintiff alleges the defendants violated section 23-1.7 (b) (1) of the Industrial Code (12 NYCRR23-1.1 et seq.), which applies to hazardous openings. However, the height differential betweenthe edge of the doorway and the lower level of the roof does not constitute a hazardous openingwithin the meaning of section 23-1.7 (b) (1) of the Industrial Code (see Pope v Safety & Quality Plus, Inc.,74 AD3d 1040, 1041 [2010]; Rookwood v Hyde Park Owners Corp., 48 AD3d 779, 781 [2008];Godoy v Baisley Lbr. Corp., 40AD3d 920, 923-924 [2007]).
Although the defendants did not appeal from so much of the order as denied that branch oftheir motion which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 241 (6), this Court has the authority to search the record and awardsummary judgment to a nonappealing party with respect to an issue that was the subject of themotion before the Supreme Court (seeRovelo v Volcy, 83 AD3d 1034 [2011]; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712 [2009]).Upon searching the record, we award summary judgment to the defendants dismissing the causeof action alleging a violation of Labor Law § 241 (6) (see CPLR 3212 [b]).
The plaintiff's contention that the Supreme Court erred in denying that branch of his crossmotion which was for summary judgment on the cause of action alleging a violation of LaborLaw § 240 (1) is without merit. The plaintiff failed to establish that the statute was violatedand that the violation was a proximate cause of his injuries (see Norero v 99-105 Third Ave. Realty, LLC, 96 AD3d 727[2012]; Robinson v Goldman SachsHeadquarters, LLC, 95 AD3d 1096 [2012]; Henry v Eleventh Ave., L.P., 87 AD3d 523 [2011]). The recordshows that the plaintiff's injuries did not result from the type of elevation related hazard to whichthe statute applies (see Wilinski v 334 E.92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; Rocovich v ConsolidatedEdison Co., 78 NY2d 509, 514 [1991]; Pope v Safety & Quality Plus, Inc., 74 AD3d 1040 [2010]; Seaman v Bellmore Fire Dist., 59AD3d 515 [2009]; Biafora v City ofNew York, 27 AD3d 506 [2006]).
Although the defendants did not appeal from so much of the order as denied that branch oftheir motion which was for summary judgment dismissing the cause of action alleging a violationof Labor Law § 240 (1), upon searching the record, we award summary judgment to thedefendants dismissing that cause of action (see CPLR 3212 [b]). Skelos, J.P., Balkin,Leventhal and Cohen, JJ., concur. [Prior Case History: 32 Misc 3d 1242(A), 2011 NY SlipOp 51682(U).]