Czaska v. Lenn Lease Ltd.

the law without costs, motion denied, summary judgment granted to defendant and Labor Law § 240 (1) cause of action dismissed. Memorandum: Plaintiffs appeal from an order denying their motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action. Supreme Court concluded that there is a factual issue whether the activity in which Walter Czaska (plaintiff) was engaged, insulating second-story windows by stapling sheets of plastic over them, was the alteration of a structure within the meaning of the Labor Law rather than routine maintenance. We exercise our authority to search the record and grant summary judgment to defendant dismissing the Labor Law § 240 (1) cause of action despite the absence of a cross motion (see, Dunham v Hilco Constr. Co., 89 NY2d 425 , 429-430; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 , 110-111). The activity in which plaintiff was engaged constitutes routine maintenance as a matter of law and does not fall within the protection of the Labor Law (see, Joblon v Solow, 91 NY2d 457 ; Smith v Shell Oil Co., 85 NY2d 1000 , 1002; Cook v Parish Land Co., 239 AD2d 956 ; cf., Ferrari v Niasher Realty, 175 AD2d 591 ). (Appeal from Order of Supreme Court, Erie County, Kane, J.— Summary Judgment.) Present — Denman, P. J., Lawton, Pigott, Jr., Balio and Boehm, JJ.