September 27, 2013
PATRICK GAFFNEY, PLAINTIFF-APPELLANT,
NORAMPAC INDUSTRIES, INC., DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Shirley Troutman, J.), entered May 8, 2012 in a personal injury action. The order, inter alia, granted that part of the motion of defendant for summary judgment dismissing the complaint with respect to the Labor Law § 240 (1) cause of action and denied the cross motion of plaintiff for partial summary judgment on the common-law negligence and Labor Law §§ 200 and 240 (1) causes of action.
THOMAS C. PARES, BUFFALO, FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (CHRISTOPHER G. FLOREALE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he allegedly sustained when a seal that was located on top of a loading dock door fell and struck him on the head. Contrary to plaintiff's contention, Supreme Court properly granted that part of defendant's motion for summary judgment dismissing the complaint with respect to the Labor Law § 240 (1) cause of action. At the time of the accident, plaintiff and his coworker were testing a dock lock that they had just repaired. Notably, the door seal that was located above them did not "require securing for the purposes of the undertaking" (Outar v City of New York, 5 N.Y.3d 731, 732). Labor Law § 240 (1) therefore does not apply here because " [t]his was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected' " (Roberts v General Elec. Co., 97 N.Y.2d 737, 738; see Narducci v Manhasset Bay Assoc., 96 N.Y.2d 259, 268-269; Smith v Le Frois Dev., LLC, 28 A.D.3d 1133, 1133). Contrary to plaintiff's further contention, the court did not err in relying upon the theory that plaintiff did not face an elevation-related risk even though defendant did not raise it in its initial motion papers. Plaintiff cross-moved for partial summary judgment on, inter alia, the Labor Law § 240 (1) cause of action and, pursuant to CPLR 3212 (b), the court had the authority to grant relief to a nonmoving party (see Charter Sch. for Applied Tech. v Board of Educ. for City Sch. Dist. of City of Buffalo, 105 A.D.3d 1460, 1462-1463; Simet v Coleman Co., Inc., 42 A.D.3d 925, 927-928). Thus, the issue whether plaintiff faced an elevation-related risk was before the court on plaintiff's cross motion (see generally Dunham v Hilco Constr. Co., 89 N.Y.2d 425, 429-430; Costello v Hapco Realty, 305 A.D.2d 445, 446).
The court properly denied that part of plaintiff's cross motion seeking partial summary judgment on the Labor Law § 200 and common-law negligence causes of action. Plaintiff failed to establish as a matter of law that defendant either created the defective condition or had actual or constructive notice of it (see generally Steiger v LPCiminelli, Inc., 104 A.D.3d 1246, 1248). We reject plaintiff's contention that he met his burden by establishing that defendant did not inspect the seal prior to the accident. " The duty of landowners to inspect their property is measured by a standard of reasonableness under the circumstances' " (Anderson v Justice, 96 A.D.3d 1446, 1447), and we conclude that it is for a trier of fact to determine whether defendant's conduct was reasonable.