Opinion
June 10, 1998
Appeal from the Supreme Court, Erie County, Kane, J. — Summary Judgment.
Present — Denman, P.J., Lawton, Pigott, Jr., Balio and Boehm, JJ.
Order unanimously reversed on the law without costs, motion denied, summary judgment granted to defendant and Labor Law § 240 Lab. (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 Lab. (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 Lab. (1) cause of action despite the absence of a cross motion ( see, Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430; Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 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 N.Y.2d 457; Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1002; Cook v. Parish Land Co., 239 A.D.2d 956; cf., Ferrari v. Niasher Realty, 175 A.D.2d 591).