BOSS v. << (1998)

Order, Supreme Court, New York County (Norman Ryp, J.), entered March 19, 1997, which denied defendant/third-party plaintiff's CPLR 3212 motion for summary judgment dismissing the complaint or for summary judgment upon its third-party complaint, unanimously modified, on the law, and upon a search of the record, to grant plaintiff partial summary judgment as to liability on his Labor Law § 240(1) claim, and otherwise affirmed, without costs.

 Contrary to the arguments made by defendant/third-party plaintiff Integral Construction Corporation (“Integral”), the motion court properly denied its motion for summary judgment dismissing plaintiff's Labor Law § 240(1) claim.   Plaintiff was injured when he fell while installing windows without the protection of any safety devices, and since his injuries were thus at least partially attributable to the risks arising from an elevation differential, they come within the remedial ambit of Labor Law § 240(1) (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514, 577 N.Y.S.2d 219, 583 N.E.2d 932).   Indeed, although plaintiff did not move for summary judgment before the motion court and has not cross-appealed, invocation of our power to search the record pursuant to CPLR 3212(b) is appropriate here where a motion for summary judgment respecting the Labor Law § 240(1) cause of action is before the court (see, Dunham v. Hilco Constr. Co., Inc., 89 N.Y.2d 425, 428-429, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Merritt Hill Vineyards Inc. v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 110, 472 N.Y.S.2d 592, 460 N.E.2d 1077), and, upon such a search of the record, we grant plaintiff partial summary judgment as to liability on his Labor Law § 240(1) claim.   Since, as noted, no safety devices were provided, Integral is liable as a matter of law on that claim (see, Zimmer v. Chemung Co. Performing Arts, 65 N.Y.2d 513, 521, 493 N.Y.S.2d 102, 482 N.E.2d 898;  Sherman v. Eugene I. Piotrowski Builders, Inc., 229 A.D.2d 959, 645 N.Y.S.2d 244;  Clark v. Fox Meadow Builders, Inc., 214 A.D.2d 882, 884, 624 N.Y.S.2d 685).

 The motion court properly allowed plaintiff to amend the complaint and bill of particulars to allege a violation of specific Industrial Code regulations in support of his Labor Law § 241(6) claim (see, CPLR 3025);  the sections of the Industrial Code cited by plaintiff (12 NYCRR 23-1.7[b], [d], [e] ) are sufficiently specific to support a Labor Law § 241(6) cause of action (see generally, Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 504-505, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Nonetheless, it is clear that 12 NYCRR 23-1.7[b] does not apply to the facts at bar, since plaintiff did not fall into a “hazardous opening” (see, Bennion v. Goodyear Tire & Rubber Co., 229 A.D.2d 1003, 645 N.Y.S.2d 195;  DeLong v. State Street Assocs., L.P., 211 A.D.2d 891, 893, 621 N.Y.S.2d 172), and that 12 NYCRR 23-1.7[d] does not apply since there is no evidence of a slippery condition, and that 12 NYCRR 23-1.7[e][1] does not apply since plaintiff's accident did not involve a “passageway” (see, Gavigan v. Bunkoff General Contractors, Inc., 247 A.D.2d 750, 669 N.Y.S.2d 69;  Lenard v. 1251 Americas Assocs., 241 A.D.2d 391, 660 N.Y.S.2d 416).  On the other hand, 12 NYCRR 23-1.7[e][2] does apply, since the piece of sheetrock on which the plaintiff allegedly tripped constituted “debris” and “scattered materials” within the meaning of that regulation (see, Lenard v. 1251 Americas Assocs., 241 A.D.2d supra, at 393, 660 N.Y.S.2d 416;  Baker v. Intl. Paper Co., 226 A.D.2d 1007, 641 N.Y.S.2d 206;  White v. Sperry Supply & Warehouse, Inc., 225 A.D.2d 130, 649 N.Y.S.2d 236;  Samiani v. New York State Elec. & Gas Corp., 199 A.D.2d 796, 605 N.Y.S.2d 516).

 Since plaintiff alleged that Integral workers placed the sheetrock in a location where it caused him to trip, and there is no evidence in the record to the contrary, the motion court properly denied Integral's motion for summary judgment on the negligence and Labor Law causes of action, and properly determined that this issue of fact, i.e., whether Integral was responsible for the placement of sheetrock, and the issue of Integral's control over safety practices at the work site (see, Gawel v. Consolidated Edison Co., 237 A.D.2d 138, 655 N.Y.S.2d 351), precluded any grant of summary judgment to Integral on the indemnification claim interposed in its third-party complaint.

MEMORANDUM DECISION.