IRON WORKER DEFEATS DEFENSE MOTION TO DISMISS LABOR LAW CLAIM WHERE HIS EYE INJURED FOR LACK OF PROTECTIVE EYEWEAR

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

Case: Eugene Buckley v. Triborough Bridge and Tunnel Authority

Date: Jan. 17, 2012

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

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Order, Supreme Court, New York County (Michael D. Stallman, J.), entered June 15, 2011, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss plaintiff's cause of action based on Labor Law Sec. 241(6), unanimously affirmed, without costs.

Plaintiff was employed as an iron worker on the Triborough Bridge. He was injured when, while retrieving an electrical cord from a basket lift, the loose end of his lanyard became caught and suddenly released. The lanyard snapped back causing the hook end to hit his eye. That portion of Industrial Code (12 NYCRR) section 23-1.8(a), which requires such protective eyewear under circumstances where an employee is engaged in any "operation which may endanger the eyes," is specific enough to support a Labor Law Sec. 241(6) claim (Galawanji v. 40 Sutton Place Condominium, 262 A.D.2d 55, 691 N.Y.S.2d 436 [1999], lv. denied 94 N.Y.2d 756, 703 N.Y.S.2d 73, 724 N.E.2d 769 [1999]). Whether the activity in which plaintiff was engaged presented a foreseeable risk of eye injury, requiring the furnishing of eye protection "suitable for the hazard involved," pursuant to Industrial Code Sec. 23-1.8(a), is a question for the jury (see Fresco v. 157 E. 72nd St. Condominium, 2 A.D.3d 326, 328, 769 N.Y.S.2d 536 [2003], lv. dismissed 3 N.Y.3d 630, 782 N.Y.S.2d 398, 816 N.E.2d 187 [2004]).

We have examined defendant's other contentions, and find them unavailing.

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