ATIENCIA v. MBBCO II, LLC

A court, in the course of deciding a motion, is empowered to search the record and award summary judgment to a nonmoving party ( see CPLR 3212 [b]; Lennard v Khan, 69 AD3d 812, 814). However, with respect to the June 2009 order, the motion court erred in dismissing the Labor Law § 241 (6) claim against Farrell, as that claim was not placed before the court on plaintiffs' summary judgment motion ( see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430).

Regarding the October 2009 order, the motion court should have granted the motions to renew. Although the newly submitted evidence was available at the time of the prior motion, the court "ha[d] discretion to relax this requirement and to grant such a motion in the interest of justice" ( Mejia v Nanni, 307 AD2d 870, 871). Not only did plaintiffs and MBBCO offer reasonable justification for failing to submit the evidence submitted on the motion, but the new facts submitted do, in fact, change the prior determination (CPLR 2221 [e] [2]).

The record shows that Farrell was hired as the general contractor, and that it had "complete control" and "overall control" of the project, supervised the construction site, and enforced all safety regulations. Thus, the record establishes that Farrell was the general contractor on the project, and, as such, is liable to plaintiffs pursuant to Labor Law § 240 (1) ( see Thompson v St. Charles Condominiums, 303 AD2d 152, 155, lv dismissed 100 NY2d 556). Accordingly, partial summary judgment in plaintiffs' favor on the section 240 (1) claim as against Farrell is warranted ( see Blake v Neighborhood Hous. Servs. of NY. City, 1 NY3d 280, 289 n 8 [2003]).