Dunham v. Hilco Const. Co., Inc.
| Decision Date | 19 December 1996 |
| Citation | 654 N.Y.S.2d 335,89 N.Y.2d 425,676 N.E.2d 1178 |
| Parties | , 676 N.E.2d 1178 James DUNHAM, Appellant, v. HILCO CONSTRUCTION COMPANY, INC., Respondent, et al., Defendants. (And Two Third-Party Actions.) |
| Court | New York Court of Appeals Court of Appeals |
This personal injury action calls upon us to define the extent to which a court can search the record pursuant to CPLR 3212(b) and award summary judgment to a nonmoving party. Here, by itself granting defendant summary judgment on an issue that was not presented in the motion papers, the Appellate Division exceeded its statutory power. We therefore reverse the Appellate Division's dismissal of plaintiff's negligence claim and remit the matter to the trial court for further proceedings.
According to the complaint, on March 31, 1989, plaintiff, an employee of subcontractor Louis Calhoun, was working at a construction site in Queens. Plaintiff began unloading a concrete reinforcement bar (rebar) with an employee of Hilco Construction Company, another subcontractor. As the Hilco employee--who was standing--lifted his end of the 15-foot-long rebar, plaintiff, then in a squatting position, grasped his end and started to stand. The Hilco employee suddenly "snatched" the rebar, causing plaintiff to lose his balance, stumble to his knees and injure his back.
Plaintiff commenced a damages action against a number of parties--Marc, Howard, Joel and Maxine Beige, the premises owners; Salk Construction Corporation, the general contractor; and Hilco--on a common-law negligence theory. Salk and Hilco impleaded Calhoun. Plaintiff then amended his complaint, asserting one cause of action against Salk and Hilco for negligence on the part of their employees, and a second against the Beiges and Salk for common-law negligence and associated violations of Labor Law §§ 200, 240 and 241(6). Salk sought summary judgment, and the Beiges and Calhoun each cross-moved for summary judgment. Neither Hilco nor plaintiff asked for summary judgment.
On consent of plaintiff, the trial court dismissed the complaint as to Salk and the Beiges under Labor Law §§ 200 and 240, but it denied summary judgment on plaintiff's Labor Law § 241(6) claim finding triable issues of fact. The court also denied Calhoun's motion for summary judgment on the third-party complaints. Urging that Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 () changed the law with regard to plaintiff's Labor Law § 241(6) claim, Salk and Calhoun moved to renew or reargue. The trial court granted reargument but, upon reargument, adhered to its determination.
On appeal by Salk and Calhoun, the Appellate Division reversed, dismissed the actions against them, and on searching the record also dismissed the complaint against the Beiges and Hilco. The court stated that "because the plaintiff previously consented to the dismissal of his causes of action under Labor Law § 200 and because Labor Law § 200 is merely a codification of an owner's and general contractor's common-law duty to provide workers with a safe place to work * * * the plaintiff's common-law negligence cause of action as against all the defendants should * * * be dismissed" (221 A.D.2d 586, 587, 634 N.Y.S.2d 208).
Plaintiff contends that the Appellate Division erred in dismissing his common-law negligence claim against Hilco. He urges that the Appellate Division wrongly construed his consent to dismissal of his Labor Law § 200 claims against the Beiges and Salk as an abrogation of his common-law negligence claim against Hilco. By doing so, asserts plaintiff, the Appellate Division inappropriately granted summary judgment to Hilco, a nonmovant, on an issue not addressed in the motion papers. We agree.
As plaintiff argues, consent to dismissal of the Labor Law § 200 claims against the Beiges and Salk did not foreclose a common-law negligence claim against Hilco.
Labor Law § 200 essentially "codifies landowners' and general contractors' common-law duty to maintain a safe workplace" (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82). When, after depositions, it became apparent that plaintiff's Labor Law § 200 claims against the Beiges and Salk lacked merit, plaintiff consented to a dismissal of those statutory claims. In that plaintiff's negligence claims against those parties were predicated on the same theory--that they had failed to provide plaintiff with a safe workplace--those common-law claims were also dismissed.
Plaintiff's theory of liability as to Hilco, however, was different. Plaintiff's claim against Hilco was based on the negligence of its employee, attributable to Hilco under the doctrine of respondeat superior. Consent to dismissal of the Labor Law § 200 claim against the Beiges and Salk therefore did not also carry with it plaintiff's common-law claim against Hilco.
We agree with plaintiff, moreover, that the Appellate Division lacked authority to award Hilco, a nonmovant, summary judgment on an issue not presented by the motions.
Resolution of this issue turns on our reading of CPLR 3212(b), which states that if "it shall appear that any party other than the moving party is entitled to a...
To continue reading
Request your trial
-
QBE Ins. Corp. v. ADJO Contracting Corp.
...search the record and determine that Penn National was entitled to such a declaration (see generally Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178 ).Contrary to the contentions of ACE and Zurich, which issued their policies in Texas, there is no rele......
-
Qbe Ins. Corp. v. Adjo Contracting Corp.
...search the record and determine that Penn National was entitled to such a declaration ( see generally Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–430, 654 N.Y.S.2d 335, 676 N.E.2d 1178). Contrary to the contentions of ACE and Zurich, which issued their policies in Texas, there is no rel......
-
Gammons v. City of N.Y.
...Co., 81 A.D.3d 609, 610, 915 N.Y.S.2d 870). Finally, we decline to search the record ( seeCPLR 3212[b]; Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 654 N.Y.S.2d 335, 676 N.E.2d 1178) and award the plaintiff summary judgment on the issue of liability on the General Municipal Law § 205–e caus......
-
Johnston v. Nakis
...so inclined. Remet Corp. v. Estate of Pyne, 112 A.D.3d 1313, 977 N.Y.S.2d 823 (4th Dept.2013). See Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–30, 654 N.Y.S.2d 335, 676 N.E.2d 1178 (1996) ; CPLR 3212(b). See generally, Lee v. City of Rochester, 254 A.D.2d 790, 791, 677 N.Y.S.2d 848 (4th......
-
Dependent upon the kindness of strangers: the circumstances in which a non-appellant may be awarded affirmative relief in the New York Courts.
...(App. Div. 2d Dep't 2009); Marrache v. Akron Taxi Corp., 50 A.D.3d 973, 975, 856 N.Y.S.2d 239, 241 (App. Div. 2d Dep't 2008). (44) 89 N.Y.2d 425, 676 N.E.2d 1178, 654 N.Y.S.2d 335 (45) Id. at 430, 676 N.E.2d at 1180, 654 N.Y.S.2d at 337. (46) Id. at 430, 676 N.E.2d at 1180, 654 N.Y.S.2d at ......