| Misicki v Caradonna |
| 2008 NY Slip Op 04328 [51 AD3d 644] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Igor Misicki, Respondent, v Salvatore Caradonna,Defendant, and 430-50 Shore Road Corporation, Appellant. (And a Third-PartyAction.) |
—[*1] Perecman & Fanning, PLLC, New York, N.Y. (David H. Perecman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant 430-50 Shore RoadCorporation appeals, as limited by its brief, from so much of an order of the Supreme Court,Kings County (Schmidt, J.), dated March 8, 2007, as amended by an order of the same courtdated June 25, 2007, as, upon reargument of that branch of its prior motion which was forsummary judgment dismissing the Labor Law § 241 (6) cause of action insofar as assertedagainst it to the extent that it was premised upon an alleged violation of 12 NYCRR 23-9.2 (a),which had been granted by a prior order of the same court dated April 11, 2006, vacated thatportion of the prior order, and denied that branch of its prior motion.
Ordered that the order dated March 8, 2007, as amended, is reversed insofar as appealedfrom, on the law, with costs, and, upon reargument, the original determination in the order datedApril 11, 2006 granting that branch of the defendant's prior motion which was for summaryjudgment dismissing the Labor Law § 241 (6) cause of action insofar as asserted against itto the extent that it was premised upon an alleged violation of 12 NYCRR 23-9.2 (a) is adheredto.
The plaintiff allegedly was injured while utilizing a tool known as a "Grinder" to cut throughconcrete. The plaintiff commenced this action to recover damages for personal injuries against,[*2]among others, the defendant 430-50 Shore Road Corporation(hereinafter the defendant), the owner of the property at which he was working on the date of theincident. Upon reargument, the Supreme Court denied that branch of the defendant's motionwhich was for summary judgment dismissing the Labor Law § 241 (6) cause of actioninsofar as asserted against it, to the extent that it was premised upon an alleged violation of 12NYCRR 23-9.2 (a). We reverse.
Contrary to the Supreme Court's determination, 12 NYCRR 23-9.2 (a) does not support theplaintiff's claim under Labor Law § 241 (6), as that provision merely establishes generalsafety standards which do not give rise to a nondelegable duty (see Anarumo v SlatteryAssoc., 298 AD2d 339, 340 [2002]; Thompson v Ludovico, 246 AD2d 642, 643-644[1998]; Phillips v City of New York, 228 AD2d 570, 572 [1996]; see also Hassett v Celtic Holdings, 7AD3d 364, 365 [2004]). Accordingly, upon reargument, the Supreme Court should haveadhered to the original determination granting that branch of the defendant's prior motion whichwas for summary judgment dismissing the Labor Law § 241 (6) cause of action insofar asasserted against it to the extent that it was premised upon an alleged violation of 12 NYCRR23-9.2 (a). Rivera, J.P., Spolzino, Dillon and Balkin, JJ., concur.