DEFENSE MOTION TO DISMISS LABOR LAW CLAIM GRANTED WHERE PLAINTIFF HURT WHILE USING POWER GRINDER TO CUT METAL

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Cabrera v. Revere Condominium

Date: Jan. 17, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

Comment: In this construction accident case, plaintiff was injured while cutting metal with a power grinder. Plaintiff's attempt to fit his claim in to the New York Labor Law provisions that protect people that use saws fails. The appeals court holds that a grinder is a grinder, and even if this grinder was being used to cut metal, it still wasn't a saw.

Defense summary judgment motion granted and case dismissed.

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In an action to recover damages for personal injuries, the defendants appeal from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated December 10, 2010, as denied that branch of their motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 200, and the plaintiff cross‑appeals from so much of the same order as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6).

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 200 is granted; and it is further,

ORDERED that the order is affirmed insofar as cross‑appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

On April 5, 2007, the plaintiff was employed by Kay Waterproofing on a refacing project at a building located in Manhattan, owned by the defendant Revere Condominium and managed by the defendant Akam Associates, Inc. (hereinafter together the defendants). While attempting to cut a piece of metal with a hand‑held power grinder, the plaintiff allegedly was injured. He commenced this action against the defendants seeking to recover damages for his injuries. He asserted that the defendants violated Labor Law Secs. 200 and 241(6). The cause of action under Labor Law Sec. 241(6) was based on alleged violations of the Industrial Code (see 12 NYCRR 23-1.12[c], 23-9.2[a] ). After the note of issue was filed, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied that branch of the motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 200, but granted that branch of the motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6).

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"Labor Law Sec. 200 is a codification of the common‑law duty imposed upon an owner or general contractor to maintain a safe construction site" (McKee v. Great Atl. & Pac. Tea Co., 73 A.D.3d 872, 873, 905 N.Y.S.2d 601; see art v. Commack Hotel, LLC, 85 A.D.3d 1117, 1118, 927 N.Y.S.2d 111). When the claim is based on alleged defects or dangers in the methods or materials used to perform the work, a plaintiff may recover against an owner or general contractor under Labor Law Sec. 200 only upon a showing that the defendant had the authority to supervise or control the performance of the work (see Hart v. Commack Hotel, LLC, 85 A.D.3d at 1118, 927 N.Y.S.2d 111; McKee v. Great Atl. & Pac. Tea Co., 73 A.D.3d at 874, 905 N.Y.S.2d 601; Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323). General supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability (see La Veglia v. St. Francis Hosp., 78 A.D.3d 1123, 1125, 912 N.Y.S.2d 611; Ortega v. Puccia, 57 A.D.3d at 62-63, 866 N.Y.S.2d 323). Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have the authority to supervise or control the work in which the plaintiff was engaged at the time of his alleged injury (see Ortega v. Puccia, 57 A.D.3d at 62, 866 N.Y.S.2d 323). In opposition, the plaintiff failed to raise a triable issue of fact (see Hart v. Commack Hotel, LLC, 85 A.D.3d at 1118, 927 N.Y.S.2d 111). Therefore, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 200.

The Supreme Court correctly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6). "To prevail on a cause of action asserted under Labor Law Sec. 241(6), a plaintiff must establish a violation of an implementing regulation that sets forth a specific standard of conduct as opposed to a general reiteration of common‑law principles" (O'Hare v. City of New York, 280 A.D.2d 458, 458, 720 N.Y.S.2d 523; see Nostrom v. A.W. Chesterton Co., 15 N.Y.3d 502, 507, 914 N.Y.S.2d 725, 940 N.E.2d 551; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-504, 601 N.Y.S.2d 49, 618 N.E.2d 82). Here, the plaintiff asserted that the defendants violated 12 NYCRR 23-1.12(c), which relates to power‑driven saws, and 12 NYCRR 23-9.2(a), which, as limited by 12 NYCRR 23-9.1, relates to "power‑operated heavy equipment or machinery" (12 NYCRR 23-9.1). The defendants established, prima facie, that neither 12 NYCRR 23-1.12(c) nor 12 NYCRR 23-9.2(a) was applicable. First, 12 NYCRR 23-1.12(c) applies only to saws, and the grinder was not a saw. Second, the hand‑held grinder was not "heavy machinery" as regulated by 12 NYCRR 23-9 (see Misicki v. Caradonna, 12 N.Y.3d 511, 520, 882 N.Y.S.2d 375, 909 N.E.2d 1213). In opposition, the plaintiff failed to raise a triable issue of fact. The allegation that the grinder was being used to cut metal through the use of a grinder blade did not raise a triable issue of fact as to whether it was a "saw" within the meaning of 12 NYCRR 23-1.12(c) (cf. St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 416, 923 N.Y.S.2d 391, 947 N.E.2d 1169). That regulation is specific in terms of the required safety features of a saw and, given its function, a grinder lacks such features. Additionally, although the grinder was being used to cut metal, it was not being used to do so by "sawing" it.

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It is unnecessary to address the parties' contentions on the cross appeal relating to the timeliness of the defendants' disclosure of their expert witness. Our determination of the issue raised on the cross appeal as to that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) is independent of the parties' expert submissions.

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