| Barrios v Boston Props. LLC |
| 2008 NY Slip Op 07579 [55 AD3d 339] |
| October 7, 2008 |
| Appellate Division, First Department |
| Barbara Barrios, Respondent, v Boston Properties LLC etal., Respondents. JT Magen & Co., Inc., Third-Party Plaintiff-Respondent, v DonaldsonAcoustics Co., Inc., Third-Party Defendant-Appellant. |
—[*1] Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for JT Magen & Co., Inc., respondent.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered September 27,2007, which, to the extent appealed from as limited by the brief, denied third-party defendant'smotion for summary judgment dismissing the Labor Law §§ 200 and 241 (6) claims,unanimously modified, on the law, to dismiss the Labor Law § 241 (6) claim, andotherwise affirmed, without costs.
That part of the motion that sought dismissal of the Labor Law § 200 claim waspremature, since, as a result of the failure of all defendants to engage in discovery, the identity ofthe defendant that supervised and controlled the freight elevator into which plaintiff was loadingdoor bucks was within defendants' exclusive knowledge (see CPLR 3212 [f]).
However, the Labor Law § 241 (6) claim should have been dismissed because theIndustrial Code (12 NYCRR) sections cited by plaintiff as predicates for this claim areinapplicable. The accident occurred on a loading dock or work area, not a "passageway,walkway, stairway or other thoroughfare" (12 NYCRR 23-2.1 [a] [1]; see Waitkus v Metropolitan Hous.Partners, 50 AD3d 260 [2008]). A freight elevator is not a "material hoist" as [*2]contemplated by the Code (12 NYCRR 23-6.1 [d]; 23-6.3 [e] [3];23-1.4 [b] [33]; see Lindstedt v 813 Assoc., 238 AD2d 386 [1997], lv dismissed90 NY2d 1007 [1997], affg in pertinent part 167 Misc 2d 273 [1996]).Concur—Tom, J.P., Friedman, Buckley, Acosta and Freedman, JJ.