Bartley v. Accu-Glo Electric Corp.

May 8, 2000
Versions:272 A.D.2d 352
708 N.Y.S.2d 127
2000 N.Y. App. Div. LEXIS 5112

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated May 17, 1999, which granted the plaintiffs’ motion for summary judgment on the cause of action to recover damages pursuant to Labor Law § 240 (1).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and upon searching the record, summary judgment is granted to the defendants dismissing the cause of action to recover damages pursuant to Labor Law § 240 (1).

While the injured plaintiff was standing on level ground, unloading a wire reel from the bed of a panel truck three feet from the ground, the reel caught on a lip of the bed of the truck and flew out, striking him. The instant action does not come within the scope of hazards covered by Labor Law § 240 (1) (see, Jacome v State of New York, 266 AD2d 345; cf., Rocovich v Consolidated Edison Co., 78 NY2d 509). Although the defendants never cross-moved for summary judgment dismissing the plaintiffs’ Labor Law § 240 (1) claim, this Court has the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a nonmoving party (see, QDR Consultants & Dev. Corp. v Colonia Ins. Co., 251 AD2d 641; Dunham v Hilco Constr. Co., 89 NY2d 425). Santucci, J. P., Friedmann, McGinity and Smith, JJ., concur.