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Steven Wildstein, for appellant.
Frederick B. Simpson, for respondent.
KAYE, CHIEF JUDGE:
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 NY2d 494) (decided
after the trial court's order) 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 AD2d 586, 587).
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 NY2d at
505). 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 summary judgment, the
court may grant such judgment without the necessity of a cross-motion."
As we held in Merritt Hill Vineyards, Inc. v Windy Heights Vineyards, Inc.
(61 NY2d 106), the Appellate Division has the authority to grant summary
judgment in favor of a nonmoving party even in the absence of a cross appeal
by that party. That reading of CPLR 3212(b) is consistent with the
laudatory purposes of summary judgment, which promotes efficient case resolution.
The Appellate Division's power to search the record and afford a nonmoving
party summary relief is not, however, boundless (see generally, Siegel,
NY Prac 282, at 412 [2d ed]; 4 Weinstein-Korn-Miller, NY Civ Prac 3212.08,
at 32-187 to 32-189). Recognizing that "a motion for summary judgment
must be addressed to one or more specific causes of action or defenses"
(Conroy v Swartout, 135 AD2d 945, 947), the Appellate Divisions have uniformly
held that a court may search the record and grant summary judgment
in favor of a nonmoving party only with respect to a cause of action
or issue that is the subject of the motions
before the court (see, e.g., Frank v City of New York, 211 AD2d 478,
479 [1st Dep't]; Mercedes-Benz Credit Corp. v Dintino, 198 AD2d 901, 902
[4th Dep't]; Marshall v New York City Health and Hospitals Corp., 186 AD2d
542, 543-44 [2d Dep't]; Conroy v Swartout, supra [3d Dep't]).
The need for such a limitation is obvious.
Apart from considerations of simple fairness, allowing a summary judgment
motion by any party to bring up for review every claim and
defense asserted by every other party would be tantamount to shifting
the well-accepted burden of proof on summary judgment motions (see, GTF
Marketing, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967-68 [a
moving party must assert some basis in support of its summary judgment
motion before an opposing party has the burden of producing contrary evidence]).
In light of the good sense underlying the unanimous support in the Appellate
Divisions for a restriction on a court's power to award summary judgment
in favor of a nonmoving party on an issue unaddressed in the summary judgment
motions, we adopt that limitation as our own.
Here, the record demonstrates that the Labor
Law and associated negligence claims were litigated on the motions for
summary judgment by the Beiges, Salk and Calhoun. The question whether
Salk and Calhoun could be held liable under common law for the acts of
subcontractor Hilco's employee was also addressed. However, the issue
regarding Hilco's common law liability arising from the alleged negligence
of its employee was not before the court, and should therefore not have
precipitated summary dismissal of the complaint.
Accordingly, the Appellate Division's order
insofar as appealed from, should be reversed, with costs, and the case
remitted to Supreme Court for further proceedings in accordance
with the opinion herein.
* * * * *
* * * * * *
* * * * * *
Order, insofar as appealed from, reversed, with costs, and case remitted
to Supreme Court, Queens County, for further proceedings in accordance
with the opinion herein. Opinion by Chief Judge Kaye. Judges
Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided December 19, 1996