| Perez v 286 Scholes St. Corp. |
| 2015 NY Slip Op 09664 [134 AD3d 1085] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| Roberto Castano Perez, Appellant, v 286Scholes St. Corp. et al., Respondents. |
Pena & Kahn, PLLC, Bronx, NY (Diane Welch Bando of counsel), forappellant.
The McCauley Law Firm, LLP, White Plains, NY (David F. Tavella of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County(Ruchelsman, J.), dated July 30, 2014, as granted that branch of the defendants' motionwhich was for summary judgment dismissing so much of the complaint as alleged aviolation of Labor Law § 241 (6).
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendants' motion which was for summary judgment dismissingso much of the complaint as alleged a violation of Labor Law § 241 (6) isdenied.
The plaintiff allegedly was injured while repairing a gate on premises occupied bythe defendant Flaum Appetizing Corp. and owned by the defendant 286 Scholes St.Corp. The plaintiff testified at his deposition that he was using a grinder, from which a"protector" had been removed, to cut a sheet of metal in order to repair the gate. A pieceof the sheet of metal and a piece of the grinder shot out, striking his left hand andinjuring him.
The plaintiff commenced this action alleging, inter alia, that the defendants violatedsection 23-1.5 (c) (3) of the Industrial Code (12 NYCRR 23-1.5 [c] [3]) and therebywere liable under Labor Law § 241 (6). Following discovery, thedefendants moved for summary judgment dismissing so much of the complaint as allegeda violation of Labor Law § 241 (6). The Supreme Court granted thedefendants' motion, holding, inter alia, that 12 NYCRR 23-1.5 (c) (3) is not sufficientlyspecific to support a cause of action under Labor Law § 241 (6).
Labor Law § 241 (6) imposes on owners and contractors anondelegable duty to "provide reasonable and adequate protection and safety to personsemployed in, or lawfully frequenting, all areas in which construction, excavation ordemolition work is being performed" (Lopez v New York City Dept. of Envtl. Protection, 123 AD3d982, 983 [2014]). As a predicate to a section 241 (6) cause of action, a plaintiff mustallege a violation of a concrete specification promulgated by the Commissioner of theDepartment of Labor in the Industrial Code (see Misicki v Caradonna, 12 NY3d 511, 515 [2009];Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]).
In Misicki, the Court of Appeals held that 12 NYCRR 23-9.2 (a) wassufficiently [*2]concrete and specific to serve as apredicate to a section 241 (6) cause of action (see Misicki v Caradonna, 12 NY3dat 520-521). In particular, the Court focused on the following portion of the provision:" 'Upon discovery, any structural defect or unsafe condition in such equipmentshall be corrected by necessary repairs or replacement' " (id. at 520,quoting 12 NYCRR 23-9.2 [a]). The Court found that this portion of section 23-9.2 (a)imposes an affirmative duty and " 'mandates a distinct standard ofconduct' " (id. at 521, quoting Rizzuto v L.A. Wenger Contr. Co.,91 NY2d 343, 351 [1998]).
Here, the plaintiff's Labor Law § 241 (6) claim is predicated on analleged violation of 12 NYCRR 23-1.5 (c) (3), which provides that "[a]ll safety devices,safeguards and equipment in use shall be kept sound and operable, and shall beimmediately repaired or restored or immediately removed from the job site if damaged."Sections 23-9.2 (a) and 23-1.5 (c) (3) each set forth an action to be taken ("corrected bynecessary repairs or replacement"; "repaired or restored . . . [or] removed")and set forth the trigger or time frame for taking such action ("[u]pon discovery";"immediately . . . if damaged"). Therefore, in light of the holding of theCourt of Appeals in Misicki, we hold that 12 NYCRR 23-1.5 (c) (3) issufficiently concrete and specific to support the plaintiff's Labor Law § 241(6) cause of action (see Becerrav Promenade Apts. Inc., 126 AD3d 557 [2015]).
Furthermore, the defendants failed to eliminate all triable issues of fact as to whetherthe plaintiff was performing "construction work," as defined by 12 NYCRR 23-1.4 (b)(13), and therefore they did not satisfy their prima facie burden as to this issue (see Simon v Granite Bldg. 2,LLC, 114 AD3d 749, 753 [2014]; cf. Pino v Robert Martin Co., 22 AD3d 549, 551[2005]).
The plaintiff's remaining contentions need not be considered in light of ourdetermination. Balkin, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.