| Campoverde v Bruckner Plaza Assoc., L.P. |
| 2008 NY Slip Op 03410 [50 AD3d 836] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Jorge Campoverde, Appellant, v Bruckner PlazaAssociates, L.P., et al., Respondents, et al., Defendants. |
—[*1] Curtis Vasile, P.C., Merrick, N.Y. (Michael J. Dorry of counsel), for respondents BrucknerPlaza Associates, L.P., and Bruckner Plaza Corp. Steven R. Sundheim & Associates LLC, White Plains, N.Y. (Susan A. Scaria of counsel), forrespondents Fisher Development, Inc., and the Gap, Inc.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated March30, 2006, as denied his cross motion for leave to reargue his motion for summary judgment onthe issue of liability on his Labor Law § 240 (1) cause of action, which was determined inan order of the same court dated May 27, 2005, and, upon granting the motion of the defendantsFisher Development, Inc., and the Gap, Inc., and the cross motion of the defendants BrucknerPlaza Associates, L.P., Bruckner Plaza Corp., and Esther Schulder, for reargument of thosebranches of their respective motions which were for summary judgment dismissing his claimsunder Labor Law § 241 (6) insofar as asserted against them, which also had been denied inthe order dated May 27, 2005, granted those branches of the respective defendants' motions.
Ordered that the appeal from so much of the order as denied the plaintiff's motion for leaveto reargue is dismissed, as no appeal lies from the denial of reargument (see Haughey v Haughey, 45 AD3d804 [2007]; Berktas v McMillian,40 AD3d 563, 564 [2007]); and it is further,[*2]
Ordered that the order is affirmed insofar as reviewed;and it is further,
Ordered that one bill of costs is awarded to the respondents.
The Supreme Court correctly granted summary judgment to the respondents dismissing theplaintiff's claims under Labor Law § 241 (6) alleging violation of 12 NYCRR 23-3.3 (c)and (e). The respondents demonstrated that 12 NYCRR 23-3.3 (c), governing inspections, did notapply to the facts of this case, as that regulation requires "continuing inspections against hazardswhich are created by the progress of the demolition work itself" rather than inspections of howdemolition would be performed (Monroe v City of New York, 67 AD2d 89, 100 [1979]).The hazard which injured the plaintiff was the actual performance of the demolition work, notstructural instability caused by the progress of the demolition.
The respondents also demonstrated that 12 NYCRR 23-3.3 (e), applying to buckets andhoists, did not apply to the facts of this case, as that regulation requires buckets and hoists to beused in the removal of demolition debris from the interior of structures, not in the removal ofmaterial from its original place in a wall or ceiling (see generally Zdunczyk v Ginther, 15 AD3d 574 [2005]; Donnelly v City of Niagara Falls, 5AD3d 1103 [2004]; Freitas v New York City Tr. Auth., 249 AD2d 184 [1998]).Here, the plaintiff was injured while removing a duct from a ceiling, not while removing it fromthe building in order to dispose of it.
The respondents established, prima facie, their entitlement to judgment as a matter of law. Inopposition, the plaintiff failed to raise a triable issue of fact regarding the applicability of thosesections of the Industrial Code. Rivera, J.P., Lifson, Florio and Chambers, JJ., concur.