| Becerra v Promenade Apts. Inc. |
| 2015 NY Slip Op 02191 [126 AD3d 557] |
| March 19, 2015 |
| Appellate Division, First Department |
[*1]
| Julio Becerra, Appellant, v PromenadeApartments Inc. et al., Respondents. |
Ginarte O'Dwyer Gonzalez Gallardo & Winograd, LLP, New York (Steven R.Payne of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Richard Reiter ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered March 5, 2014,which, to the extent appealed from as limited by the briefs, granted defendants' motionfor summary judgment dismissing the Labor Law § 241 (6) claimpredicated upon a violation of Industrial Code (12 NYCRR) § 23-1.5 (c)(3), reversed, on the law, without costs, and the motion denied.
Plaintiff testified that on the day of the accident, a foreman provided him with anangle grinder that did not have a safety guard, and instructed him to perform certain workdespite the absence of such a guard. He contends that because other grinders at the sitehad guards, the instruction that he use the tile grinder without its guard, and the failure toremove the unguarded grinder from the work site, constituted violations of the "specificand concrete requirements" of 12 NYCRR 23-1.5 (c) (3).
The motion court erred in finding that section 23-1.5 (c) (3) was too general tosupport plaintiff's Labor Law § 241 (6) claim. Industrial Code (12 NYCRR)§ 23-1.5 (c) (3) provides, "All safety devices, safeguards and equipment inuse shall be kept sound and operable, and shall be immediately repaired or restored orimmediately removed from the job site if damaged." In Misicki v Caradonna (12NY3d 511, 520-521 [2009]), the Court of Appeals held that the third sentence of 12NYCRR 23-9.2 (a), which says, "Upon discovery, any structural defect or unsafecondition in such equipment shall be corrected by necessary repairs or replacement,"imposed an affirmative duty, rather than merely reciting common-law principles, and thattherefore its violation was sufficiently specific to support a Labor Law§ 241 (6) claim. The regulation plaintiff relies on here, 12 NYCRR 23-1.5(c), has a structure similar to 12 NYCRR 23-9.2 (a): the first two sentences of section23-9.2 (a) and the first two paragraphs of section 23-1.5 (c) employ general phrases (e.g.,"good repair," "proper operating condition," "sufficient inspections," "adequatefrequency") while the third sentence and paragraph "mandate[ ] a distinct standard ofconduct, rather than a general reiteration of common-law principles, and [are] preciselythe type of 'concrete specification' that Ross [v Curtis-Palmer Hydro-Elec.Co. (81 NY2d 494 [1993])] requires" (Misicki, 12 NY3d at 521). Since thefinal paragraph of section 23-1.5 (c) is functionally indistinguishable from the thirdsentence of section 23-9.2 (a), in that both mandate a distinct standard of conduct, wefind that the Court of Appeals' reasoning in Misicki applies here, and reject thedissent's suggestion that the preamble of section 23-1.5 precludes any reliance on thesection for purposes of Labor Law § 241 (6).
Our dissenting colleague would affirm the motion court's dismissal, not only becausehe views the relied-on regulation, 12 NYCRR 23-1.5 (c) (3), as too general, but alsobecause it does not explicitly require guards for angle grinders. He takes the position thatthe only type of portable power-driven tools for which the Industrial Code requiresguards are hand operated [*2]saws. We disagree. Section23-1.5 (c) is explicitly concerned with the "[c]ondition of equipment andsafeguards" (emphasis added), and prohibits the use of "equipment which is not ingood repair and in safe working condition" (§ 23-1.5 [c] [1]). Therefore, thedirective in paragraph (3) that "[a]ll safety devices, safeguards and equipment in use shallbe kept sound and operable, and shall be immediately repaired or restored or immediatelyremoved from the job site if damaged" provides a basis for liability under Labor Law§ 241 (6) as long as such angle grinders were ordinarily or originallyprovided with safety guards.
We therefore conclude that defendants were not entitled to summary judgmentdismissing the Labor Law § 241 (6) claim predicated upon a violation ofIndustrial Code (12 NYCRR) § 23-1.5 (c) (3). Concur—Acosta, J.P.,Andrias, Saxe and Richter, JJ.
DeGrasse, J., dissents in a memorandum as follows: Plaintiff, a demolition worker,was injured when his hand came into contact with an angle grinder that he was using tocut through cement. Plaintiff invokes Industrial Code (12 NYCRR)§ 23-1.5 (c) (3) as the predicate for his cause of action under Labor Law§ 241 (6), the only claim before us. Where relied upon by plaintiff, section23-1.5 (c) (3) provides that "[a]ll safety devices, safeguards and equipment shall be keptsound and operable, and shall be immediately repaired or restored or immediatelyremoved from the job site if damaged." Plaintiff's only theory of liability, which themajority implicitly adopts, is that "[t]he section was violated as the angle grinder was notprovided with the proper guarding as required in § 23-1.5."
As a matter of statutory and regulatory construction, I disagree with the resultreached by the majority. It is settled that in order to establish liability under Labor Law§ 241 (6), a plaintiff is required to establish a breach of a provision of theIndustrial Code which gives a specific, positive command (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 349 [1998]). Regulatory enactments, such as theIndustrial Code, are subject to the same canons of construction as statutes (see Matter of ATM One vLandaverde, 2 NY3d 472, 477 [2004]). Under one such canon of construction,"where . . . the statute describes the particular situations in which it is toapply, 'an irrefutable inference must be drawn that what is omitted or not included wasintended to be omitted or excluded' " (Patrolmen's Benevolent Assn. of Cityof N.Y. v City of New York, 41 NY2d 205, 208-209 [1976], quoting McKinney'sCons Laws of NY, Book 1, Statutes § 240; see also Eaton v New YorkCity Conciliation & Appeals Bd., 56 NY2d 340, 345 [1982]).
Section 23-1.12 (c) (1) is the only Industrial Code provision that addresses theguarding of portable, hand-operated power-driven tools and it applies to only saws. Thatsection provides that "[e]very portable, power-driven, hand-operated saw which is notprovided with a saw table, except chain saws and circular brush saws, shall be equippedwith a fixed guard above the base plate which will completely protect the operator fromcontact with the saw blade when the saw is operating and with a movable self-adjustingguard below the base plate which will completely cover the saw blade to the depth of theteeth when such saw blade is removed from the cut." By contrast, the Industrial Code setsforth no requirement regarding the guarding of grinders. Moreover, section 23-1.5 (c)(3), upon which plaintiff bases his claim, is completely silent with respect to guarding.Had the Industrial Code contemplated a requirement that grinders be guarded therewould be a specific provision to that effect. That is precisely what the Code does undersection 23-1.12 (c) (1) with respect to portable, power-driven, hand-operated saws.Under the foregoing canon of statutory construction, which the majority disregards, theIndustrial Code clearly does not require that grinders be guarded. Again, "what is omittedor not included was intended to be omitted or excluded" (Patrolmen's BenevolentAssn., 41 NY2d at 208-209 [internal quotation marks omitted]). This conclusion isinescapable because the canon applies [*3]regardless ofwhether section 23-1.5 (c) (3) is treated as a general or specific provision. Therefore, Misicki v Caradonna (12NY3d 511 [2009]), which the majority cites, is not dispositive. In any event, theclear specificity of section 23-1.12 (c) (1) belies plaintiff's argument that "there is simplyno way for the Commissioner to have drafted 12 NYCRR 23-1.5 (c) (3) in a mannermore specific than it already is" with respect to the purported requirement that grindersbe guarded. Also, although not part of the rule itself, its preamble makes it clear thatsection 23-1.5, including subdivision (c) (3), was promulgated as a general safetystandard rather than a specific standard of conduct: "These general provisionsshall not be construed or applied in contravention of any specific provisions of this Part(rule)" (12 NYCRR 23-1.5 [emphasis added]). I would affirm.