CZASKA v. LENN LEASE LIMITED (1998)

Plaintiffs appeal from an order denying their motion for partial summary judgment on liability on the Labor Law § 240(1) cause of action.   Supreme Court concluded that there is a factual issue whether the activity in which Walter Czaska (plaintiff) was engaged, insulating second-story windows by stapling sheets of plastic over them, was the alteration of a structure within the meaning of the Labor Law rather than routine maintenance.   We exercise our authority to search the record and grant summary judgment to defendant dismissing the Labor Law § 240(1) cause of action despite the absence of a cross motion (see, Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-111, 472 N.Y.S.2d 592, 460 N.E.2d 1077).   The activity in which plaintiff was engaged constitutes routine maintenance as a matter of law and does not fall within the protection of the Labor Law (see, Joblon v. Solow, 91 N.Y.2d 457, 672 N.Y.S.2d 286, 695 N.E.2d 237;  Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002, 630 N.Y.S.2d 962, 654 N.E.2d 1210;  Cook v. Parish Land Co., 239 A.D.2d 956, 659 N.Y.S.2d 601;  cf., Ferrari v. Niasher Realty, 175 A.D.2d 591, 573 N.Y.S.2d 794).

Order unanimously reversed on the law without costs, motion denied, summary judgment granted to defendant and Labor Law § 240(1) cause of action dismissed.

MEMORANDUM: