PICCINICH v. NEW YORK STOCK EXCHANGE INC (1999)

Order, Supreme Court, New York County (Stuart Cohen, J.), entered September 22, 1997, which, in an action by a laborer to recover for personal injuries, granted defendants owners' and contractor's motions for summary judgment dismissing the complaint and all cross claims as against them, unanimously modified, on the law, to reinstate plaintiff's causes of action for common-law negligence and violations of Labor Law §§ 200 and 241(6) as against the owners (New York Stock Exchange, Inc. and New York Stock Exchange Building Corp.), and otherwise affirmed, without costs.

 Plaintiff's Labor Law § 240(1) cause of action against the owners was properly dismissed because the injury he sustained when a component of the air conditioner he was dismantling fell two to three inches onto his hand was not caused by an elevation-related risk contemplated by the statute (see, Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134;  Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 609 N.Y.S.2d 322), and the allegedly defective internal support beam that fell through the bottom of the unit, causing the component to fall, was not a “brace” within the meaning of the statute (see, Misseritti v. Mark IV Const. Co., 86 N.Y.2d 487, 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;  Amato v. State of New York, 241 A.D.2d 400, 401, 660 N.Y.S.2d 576, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632).   However, plaintiff's other causes of action against the owners should not have been dismissed where, although their notice of motion stated that it was for summary judgment dismissing the entire complaint, the supporting papers, and indeed the motion court, addressed only the Labor Law § 240(1) cause of action.   Under such circumstances, it would be not only manifestly unfair to grant summary judgment against plaintiff for not responding to arguments not explicitly raised, but would also impermissibly shift the initial burden of proof (CPLR 3212[b];  see, Dunham v. Hilco Const. Co., 89 N.Y.2d 425, 430, 654 N.Y.S.2d 335, 676 N.E.2d 1178).   Concerning the contractor, summary judgment was properly granted in its favor, where it submitted an affidavit from a vice president that its records indicated it did not perform any work at the accident site prior to or at the time of the accident, and plaintiff countered with mere expressions of hope that further disclosure might uncover information linking it to the accident (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

MEMORANDUM DECISION.