| Croussett v Chen |
| 2013 NY Slip Op 00049 [102 AD3d 448] |
| January 8, 2013 |
| Appellate Division, First Department |
| Guillermo Croussett, Appellant, v Minalie Chen etal., Respondents. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset (AntonPiotroski of counsel), for Minalie Chen, Jackson Hsieh and Vella Interiors, Inc.,respondents. Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for 115Central Park West Corporation and Akam Associates, Inc., respondents.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered September20, 2011, which, to the extent appealed from as limited by the briefs, granted the motionof defendant Vella Interiors, Inc., and the cross motion of defendants 115 Central ParkWest Corporation and Akam Associates, Inc., for summary judgment dismissing theLabor Law § 241 (6) claims as against them, unanimously affirmed, without costs.
Plaintiff, a painter employed by a subcontractor on a home renovation project, wasinjured when he fell off of the ladder on which he was working. With one exception(see Industrial Code [12 NYCRR] § 23-1.21 [e] [2]), plaintiff relied uponsufficiently specific Industrial Code regulations to form the predicate for his Labor Law§ 241 (6) claims (Comes v New York State Elec. & Gas Corp., 82 NY2d876, 878 [1993]). However, the specific provisions upon which he relied, which relate toladder maintenance and slippery conditions, are inapplicable to the facts of this case(see 12 NYCRR 23-1.7 [d]; 23-1.21 [b] [3] [ii], [iv]; [4] [ii]; [e] [3]). Indeed,plaintiff testified that he properly opened and set up the eight- to nine-foot ladder, thatthe aluminum side supports were in working order, and that the ladder had four rubberfootings. There is no evidence of a slippery floor or that the masonite, which covered theceramic floor, was a foreign substance that caused a slippery footing.
Plaintiff failed to preserve his claim that defendants violated Industrial Code (12NYCRR) §§ 23-1.21 (b) (1) and 23-1.7 (e) (2) (see McMahon vDurst, 224 AD2d 324, 324 [1st Dept 1996]), and we decline to review it. Were we toreview the claim, we would reject it, as both sections are inapplicable. Plaintiff testifiedthat he cleared away the electrical coils, boxes and other materials from the work areabefore beginning his work (see 12 NYCRR 23-1.7 [e] [2]), and there is noevidence that [*2]the ladder was incapable of supportingfour times the maximum load intended to be supported thereon (see 12 NYCRR23-1.21 [b] [1]). Concur—Tom, J.P., Andrias, Freedman, Román andGische, JJ.