| Pereira v Quogue Field Club of Quogue, Long Is. |
| 2010 NY Slip Op 02761 [71 AD3d 1104] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Adan Pereira, Respondent, v Quogue Field Club ofQuogue, Long Island, Appellant. |
—[*1] Siben and Siben LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from so much ofan order of the Supreme Court, Suffolk County (Jones, Jr., J.), entered July 8, 2009, as deniedthat branch of its motion which was for summary judgment dismissing the cause of action torecover damages for a violation of Labor Law § 241 (6).
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion which were for summary judgment dismissing so much of thecause of action to recover damages for a violation of Labor Law § 241 (6) as was based onviolations of 12 NYCRR 23-1.5, 23-1.7 and 23-1.8, and substituting therefor a provisiongranting those branches of the motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The plaintiff avers that on July 9, 2007, while employed by Century Tennis, Inc., he waspaving tennis courts located on the defendant's premises. The plaintiff used a steamrollerthroughout the course of the day to perform his work. When work was halted at 3:00 p.m., theplaintiff attempted to restart the steamroller in order to drive it into a trailer in the defendant'sparking lot. There was no cover encasing the pulley on the steamroller operated by the plaintiff.According to the plaintiff, when he tried to start the steamroller by pulling a string installed onthe steamroller for that purpose, his hand was pulled towards the exposed, rapidly spinningpulley, resulting in the amputations of portions of his fingers. The plaintiff's expert attributes theinjury to the absence of a pulley cover.
In his complaint, the plaintiff alleged, inter alia, violations of Labor Law §§200, 240 (1) and § 241 (6). Upon reviewing the defendant's motion for summary judgmentdismissing the complaint, the Supreme Court determined that the Labor Law § 241 (6)cause of action was viable in its entirety. We modify.
Labor Law § 241 (6) "requires owners and contractors to provide reasonable andadequate protection and safety for workers and to comply with the specific safety rules andregulations promulgated by the Commissioner of the Department of Labor. The duty to complywith the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), isnondelegable. In order to support a claim [*2]under section 241(6), however, the particular provision relied upon by a plaintiff must mandate compliance withconcrete specifications and not simply declare general safety standards or reiterate common-lawprinciples" (Misicki v Caradonna, 12 NY3d 511, 515 [2009] [citation and internalquotation marks omitted]).
The defendant correctly contends that although the plaintiff included 12 NYCRR 23-1.5 (a)among the predicates for the Labor Law § 241 (6) cause of action, that provision merelysets forth a general standard of care and, thus, cannot serve as a predicate for liability pursuant toLabor Law § 241 (6) (see Wilson v Niagara Univ., 43 AD3d 1292, 1293 [2007];Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207, 208 [2002];Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311, 312 [1997]). Moreover, inopposition to the defendant's additional prima facie showing that 12 NYCRR 23-1.7 and 23-1.8are inapplicable to this matter, the plaintiff failed to raise a triable issue of fact. Accordingly, thedefendant was entitled to summary judgment dismissing the Labor Law § 241 (6) cause ofaction to the extent that it is based on these provisions of the Industrial Code.
The defendant further contends that the affidavit of the plaintiff's expert is inadequatebecause the expert did not physically inspect the subject steamroller, and provided onlyconclusory assertions. This contention is without merit. The expert reviewed photographs of therelevant steamroller, and provided a detailed analysis (see Torres v W.J. Woodward Constr.,Inc., 32 AD3d 847, 849 [2006]; Davidson v Sachem Cent. School Dist., 300 AD2d276, 277 [2002]; Kozma v Biberfeld, 264 AD2d 817, 818 [1999]).
The defendant's remaining contentions are without merit. Mastro, J.P., Skelos, Eng andRoman, JJ., concur.