Perhaps transcending the importance of the holding in Misicki v. Caradonna, 12 NY3d 511 (2009), underlying the reversal of summary judgment for defendant-respondent on the Labor Law §241(6)1 issue posited, is the lesson from the threshold ruling, after give and take discussion, not to consider and resolve the appeal on a ground at no place or time presented by defendant but rather discerned by the court on its own—a ground if addressed would transparently have made for affirmance.
For the purpose of the motion, Misicki’s assumed facts were:
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