Hayden v. 845 UN Ltd. Partnership

Order, Supreme Court, New York County (Alice Schlesinger, J.), [500] entered October 10, 2002, which, to the extent appealed from as limited by the brief, denied defendants’ motion for summary judgment dismissing plaintiffs Labor Law § 241 (6) claim, unanimously modified, on the law, and upon a search of the record, to grant plaintiffs 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]; 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 AD2d 121 [2000]) 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 Hgts. Vineyard, 61 NY2d 106, 110 [1984]) 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 plaintiffs prima facie demonstration of entitlement to judgment as a matter of law (see Keena v Gucci Shops, 300 AD2d 82 [2002]; Uluturk v City of New York, 298 AD2d 233 [2002]). We have considered the remaining arguments for affirmative relief and find them unavailing. Concur — Nardelli, J.P., Andrias, Sullivan, Rosenberger and Wallach, JJ.