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MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT).

he Fourth Department, reversing (modifying Supreme Court), determined a motion seeking summary judgment on the Labor Law 241 (6) cause of action should not have been granted on a ground not raised in the motion. Defendants alleged the Labor Law 241 (6) cause of action should be dismissed because plaintiff was the sole proximate cause of his injuries. The judge, sua sponte, searched the record and granted summary judgment on a different ground:

… [T]he court erred in searching the record and granting summary judgment to plaintiff on his Labor Law § 241 (6) cause of action, and we therefore modify the order accordingly. Contrary to plaintiff’s assertion, although defendants did not advance their contention before the trial court, we conclude that the contention is properly before us because defendants lacked an opportunity to raise it at any time before this appeal … . Further, ” [a] motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense’ ” … . Here, the only issue raised with respect to the Labor Law § 241 (6) cause of action was on defendants’ motion, wherein they asserted that dismissal was warranted on the ground that plaintiff was the sole proximate cause of his injuries. The court therefore erred in granting summary judgment to plaintiff based on alleged violations of 12 NYCRR 23-1.7 (b) (1) (c) and 23-3.3 (c). Lord v Whelan & Curry Constr. Servs., Inc., 2018 NY Slip Op 07563, Fourth Dept 11-9-18

CIVIL PROCEDURE (LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/LABOR LAW-CONSTRUCTION LAW (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/JUDGES   (CIVIL PROCEDURE, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))/SUA SPONTE LABOR LAW-CONSTRUCTION LAW, MOTION SEEKING SUMMARY JUDGMENT ON THE LABOR LAW 241 (6) CAUSE OF ACTION ON ONE GROUND DID NOT JUSTIFY, SUA SPONTE, SEARCHING THE RECORD AND GRANTING SUMMARY JUDGMENT ON A GROUND NOT RAISED IN THE MOTION PAPERS (FOURTH DEPT))

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