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Judgment for the Defendants reversed; New York Labor Law Case Proceeds

Often times blue collar workers are injured due to the negligence of persons who are charged with making sure that these workers have safety gear and are afforded reasonable and adequate protection in their surroundings. New York Labor Law provides that, in some instances, there is a nondelegable duty to provide such protections.

Here, our plaintiff was injurd while repairing a gate. The plaintiff gave sworn testimony that he utilized a tool of which the safety device, what he called a protector, was removed." While cutting a sheet of metal in order to repair the gate, a piece of the sheet of metal and a piece of the grinder shot out, striking his left hand and injuring him. "The plaintiff commenced this action alleging, inter alia, that the defendants violated section 23-1.5(c)(3) of the Industrial Code (12 NYCRR 23-1.5[c][3]) and thereby were liable under Labor Law § 241(6). Following discovery, the defendants moved for summary judgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6)."

T1: The Supreme Court granted the defendants' motion, holding, inter alia, that 12 NYCRR 23-1.5(c)(3) is not sufficiently specific to support a cause of action under Labor Law § 241(6).

Rule: "Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to 'provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed' " Pp. 1 (citing Lopez v New York City Dept. of Envtl. Protection, 123 AD3d 982, 983).

As a predicate to a section 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code (see Misicki v Caradonna, 12 NY3d 511, 515; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505)."

Analysis: Here, the plaintiff's Labor Law § 241(6) claim is predicated on an alleged 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 be immediately 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 by necessary repairs or replacement"; "repaired or restored . . . or removed") and set forth the trigger or time frame for taking such action ("upon discovery"; "immediately . . . if damaged").

Therefore, in light of the holding of the Court of Appeals in Misicki, we hold that 12 NYCRR 23-1.5(c)(3) is sufficiently concrete and specific to support the plaintiff's Labor Law § 241(6) cause of action (see Becerra v Promenade Apts., Inc., 126 AD3d 557)).

The Second Department here held that the "defendants failed to eliminate all triable issues of fact as to whether the plaintiff was performing 'construction work,' as defined by 12 NYCRR 23-1.4(b)(13)," and, therefore, summary judgmnet was denied: "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 dismissing so much of the complaint as alleged a violation of Labor Law § 241(6) is denied."

The case is Perez v 286 Scholes St. Corp., 2015 NY Slip Op 09664 (2d Dep't. Dec. 30, 2015).

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