HAYDEN v. 845 UN LIMITED PARTNERSHIP (2003)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered October 10, 2002, which, to the extent appealed from as limited by the brief, denied defendants' motion for summary judgment dismissing plaintiff's Labor Law § 241(6) claim, unanimously modified, on the law, and upon a search of the record, to grant plaintiff's cross motion for summary judgment as to liability on his Labor Law § 241(6) claim, and otherwise affirmed, without costs.

Contrary to defendants' contention, the Industrial Code sections cited by plaintiff in support of his Labor Law § 241(6) claim (12 NYCRR §§ 23-6.1 [d] and 23-6.2[a] ) mandate compliance with concrete specifications applicable to this case, since plaintiff, an elevator construction worker, who, at the time of his accident, was drawing an elevator cable up to a “cat-head” by pulling on a rope tied to the cable, was engaged in “hoisting” (see e.g. Mills v. Tumbleweed Mgt. Co., 270 A.D.2d 121, 704 N.Y.S.2d 571) and thus in an activity covered by the cited Code sections.   Indeed, although plaintiff has not cross-appealed from the denial of his cross motion for summary judgment as to liability upon his Labor Law 241(6) claim, we conclude upon a search of the record (see Merritt Hill Vineyards v. Windy Heights Vineyard, 61 N.Y.2d 106, 110, 472 N.Y.S.2d 592, 460 N.E.2d 1077) that the cross motion should have been granted.   Although the defense of comparative negligence was validly raised, evidentiary proof sufficient to raise a triable issue was not submitted in response to plaintiff's prima facie demonstration of entitlement to judgment as a matter of law (see Keena v. Gucci Shops, Inc., 300 A.D.2d 82, 751 N.Y.S.2d 188;  Uluturk v. City of New York, 298 A.D.2d 233, 748 N.Y.S.2d 371).

We have considered the remaining arguments for affirmative relief and find them unavailing.