| Boots v Bette & Cring, LLC |
| 2015 NY Slip Op 00588 [124 AD3d 1119] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| Peter Boots et al., Appellants, v Bette & Cring,LLC, Respondent. |
Collins & Collins, LLC, Buffalo (Charles H. Cobb of counsel), forappellants.
Stockton, Barker & Mead, LLP, Troy (John B. Paniccia of counsel), forrespondent.
Devine, J. Appeal from an order of the Supreme Court (Ellis, J.), entered October 15,2013 in Franklin County, which granted defendant's motion for summary judgmentdismissing the complaint.
While replacing a window of a school building, plaintiff Peter Boots (hereinafterplaintiff) injured his left hand and wrist when the utility knife he was usingmalfunctioned. As a result, plaintiff and his spouse, derivatively, commenced this actionagainst defendant, alleging common-law negligence and violations under Labor Law§§ 200, 240 (1) and 241 (6). Supreme Court granted defendant'smotion for summary judgment dismissing the complaint. In their sole claim on appeal,plaintiffs now assert that the court improperly dismissed their Labor Law§ 241 (6) cause of action.[FN1]
General contractors have a nondelegable duty "to provide reasonable and adequateprotection and safety for workers and to comply with the specific safety rules andregulations" set forth in the Industrial Code (Misicki v Caradonna, 12 NY3d 511, 515 [2009] [internalquotation marks and citation omitted]; see Rizzuto v L.A. Wenger Contr. Co., 91NY2d 343, 350 [1998]). [*2]A viable claim pursuant toLabor Law § 241 (6) "must show the applicability of a specific provision ofthe Industrial Code to the relevant work, a violation of the regulation, and that suchviolation constituted causally related negligence" (Copp v City of Elmira, 31 AD3d 899, 899 [2006]; seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993]). Whilecontractors can be held vicariously liable under section 241 (6), such liability dependsupon whether the regulatory provision that was allegedly violated is a " 'specific,positive command' " (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at504, quoting Allen v Cloutier Constr. Corp., 44 NY2d 290, 297 [1978]), and notmerely a declaration of a general safety standard (see Misicki v Caradonna, 12NY3d at 515; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 504-505).
Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR23-1.10 (a), which states, in pertinent part, that unpowered hand tools with "[s]plit orloose tool handles shall not be used." Notably, this regulatory provision does not merelyimpose a general duty to keep unpowered hand tools in a "safe," "proper" or "adequate"condition (see e.g. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502-506),nor does it proscribe the usage of hand tools with "unsafe" or "defective" handles, but,rather, specifically prohibits the use of hand tools with "[s]plit or loose . . .handles."
Having determined that plaintiffs have asserted a violation of a regulatory provisionthat " 'sets forth a specific standard of conduct' " for general contractorsand owners (Marshall vGlenman Indus. & Commercial Contr. Corp., 117 AD3d 1124, 1126[2014], quoting St. Louis vTown of N. Elba, 70 AD3d 1250, 1250 [2010], affd 16 NY3d 411 [2011];see Hammond v International Paper Co., 178 AD2d 798, 799 [1991]), therebyproviding a predicate basis for a claim under Labor Law § 241 (6), we areleft to decide whether the regulation applies to the facts presented in this case.[FN2] Plaintiff explainedduring his examination before trial that, while he was cutting a piece of plastic with autility knife, the locking mechanism that secures the retractable blade was loose, causingthe blade to break in half and cut plaintiff's wrist. Whether the dysfunctional lockingmechanism can fairly be considered to be a "[s]plit or loose tool handle[ ]" is a questionof law to be decided by the courts (see Szafranski v Niagara Frontier Transp. Auth., 5 AD3d1111, 1113 [2004]). A fair reading of the regulation upon which plaintiffs rely,however, does not compel us to conclude that the looseness of the lockingmechanism—an internal component of the knife and not a visible or functionalpart of the handle itself—was what the Commissioner of Labor had contemplatedin his promulgation of 12 NYCRR 23-1.10 (a) (compare St. Louis v Town of N.Elba, 16 NY3d 411, 415-416 [2011]). We are well aware that the Industrial Code"should be sensibly interpreted and applied to effectuate its purpose of protectingconstruction laborers against hazards in the workplace" (id. at 416; accord Duffina v County ofEssex, 111 AD3d 1035, 1039 [2013]). However, while the regulation sets fortha strict prohibition against using tools that have loose or split handles, it makes nomention whatsoever of the locking mechanism found within a hand tool, and we are thusconstrained to determine that it is inapplicable. Accordingly, plaintiffs are without aviable cause of action pursuant to Labor Law § 241 (6).
[*3] Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.Ordered that the order is affirmed, with costs.
Footnote 1:Plaintiffs do not addressSupreme Court's dismissal of the common-law negligence and Labor Law§§ 200 and 241 (1) claims on appeal and any claims with respectthereto are therefore deemed abandoned (see Randall v Time Warner Cable, Inc., 81 AD3d 1149,1150 n [2011]).
Footnote 2:Although given ampleopportunity to do so, plaintiffs failed to preserve for appellate review their contentionthat defendant improperly raised for the first time in its reply papers that 12 NYCRR23-1.10 (a) is inapplicable to the facts presented in this action (see Seymour v Northline Utils.,LLC, 79 AD3d 1386, 1389 [2010]).