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Misicki v. Caradonna

May 12, 2009


The opinion of the court was delivered by: Read, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

On October 26, 2001, plaintiff Igor Misicki, a laborer employed by Upgrade Contracting Company, was injured while working on a construction project at a two-building cooperative residential apartment complex located at 430 Shore Road in Long Beach, New York. The buildings were owned by defendant 430-50 Shore Road Corporation, which had retained an architect and hired Upgrade to carry out the work, which involved renovating the buildings' pool deck.

In July and August, plaintiff and another Upgrade employee changed out the sleeves of the air-conditioning units in the buildings' apartments. After Labor Day, plaintiff began working on the pool deck job, which first required him and his fellow workers to remove bricks from the base of the buildings' exterior walls next to the deck so as to lay bare the underlying concrete. On the day of his accident, plaintiff was "cutting" exposed concrete with a handheld 9-inch electrically-driven angle grinder. Specifically, his foreman directed him to "cut" (more accurately, abrade) a slot 21/2-inches deep into a line marked on the wall, about a foot or two above the deck.

When plaintiff retrieved the grinder from the toolbox maintained by Upgrade at the jobsite, he could not find the side handle for it. He described this handle as removable, and designed to be fitted onto the grinder in any one of two or three different positions. According to plaintiff, he complained to his foreman three times that the handle was unavailable; and his foreman repeatedly instructed him "to go back to work and . . . work[] without [the] handle." Plaintiff testified that he "didn't feel safe" using the grinder without the handle because he did not have "control over the machine."

After "cutting the line" for two hours with the grinder sans the side handle, plaintiff reached a point where a balcony projected from the building's exterior. The balcony was roughly three or four feet above the pool deck. In order to continue with his task, plaintiff stretched out on the deck underneath the balcony, resting on his right side; his headroom was limited, and he was lying about two feet away from the wall. Plaintiff testified that after working in this position for 20 or 30 minutes with at least one interruption to get up and search again for a handle the grinder "kicked back" and the grinding wheel struck his face, deeply lacerating his upper lip, cheek and right nostril and causing him to lose consciousness momentarily.

Plaintiff was immediately taken by ambulance to a nearby hospital, where his wounds were sutured. During the ensuing year, he underwent two surgeries to relieve breathing problems that he attributes to what his doctor described as a "complicated laceration of the nose." He complains of continuing adverse health consequences, including headaches and difficulty breathing and sleeping. At the time of his deposition in April 2004, plaintiff had not worked since the accident.

In July 2002, plaintiff sued Shore and the architect for damages; he asserted common-law negligence and violations of Labor Law §§ 200, 240 (1) and 241 (6). After the close of discovery in the summer of 2004, plaintiff withdrew his section 200 and 240 (1) claims, and discontinued the action against the architect. On March 3, 2003, Shore brought a third-party action against Upgrade, which subsequently agreed to defend and indemnify Shore. As a result, Shore's third-party action was discontinued with prejudice on March 16, 2005.

In September 2005, Shore moved for summary judgment dismissing plaintiff's complaint, which by that point consisted solely of his claim under Labor Law § 241 (6). This provision "requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993] [quotation marks omitted]). The duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is non-delegable. In order to support a claim under section 241 (6), however, the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles (id. at 504-505). Contributory and comparative negligence are valid defenses to a section 241 (6) claim; moreover, breach of a duty imposed by a rule in the Code is merely some evidence for the factfinder to consider on the question of a defendant's negligence (see Long v Forest-Fehlhaber, 55 NY2d 154, 159-160 [1982]).

Plaintiff alleged that Shore violated two of the Commissioner's rules 12 NYCRR 23-1.12 (c) (Power-driven saws) and 12 NYCRR 23-9.2 (a). In support of its motion for summary judgment, Shore argued that section 23-1.12 (c) was inapplicable because it covered portable, handheld circular saws, which Shore's expert opined are not the same as portable, handheld grinders; and that section 23-9.2 (a) was not sufficiently specific and concrete.

Subpart 23-9 of the Code is entitled "Power-Operated Equipment." Section 23-9.1 (Application of this Subpart) specifies that "[t]he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demolition and excavation operations" with certain exclusions. This statement of applicability is followed by section 23-9.2 (General Requirements), and nine sections covering specific kinds of power-operated heavy equipment or machinery*fn1. Section

23-9.2 (a) states in its entirety as follows:

"(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repair of such equipment shall be performed only while such equipment is at rest."

In its motion papers, Shore took the position that the Second Department where this lawsuit was brought had already "held that 23-9.2(a) [was] a general requirement within the meaning of Ross, . . . [and did] not give rise to the non-delegable duty under § 241 (6)." Shore adduced Phillips v City of New York (228 AD2d 570, 572 [2d Dept 1996] [referring to section 23-9.2(a), court noted, in dicta, that "the specific provisions relied upon (by the plaintiff) merely established general safety standards . . . which do not give rise to a non-delegable duty"]); Thompson v Ludovico (246 AD2d 642, 643 [2d Dept 1998] [court stated, in dicta, that certain sections cited by the plaintiff, including 12 NYCRR 23-9.2 (a), "did not support his claim under Labor Law § 241 (6) because [they] were . . . merely general safety standards"]); and Anarumo v Slattery Assoc. (298 AD2d 339, 340 [2d Dept 2002] [court denied summary judgment to the plaintiffs on their section 241 (6) cause of action because "12 NYCRR 23-9.2 (a) merely establishes general safety standards which do not give rise to a non-delegable duty"]).

In April 2006, Supreme Court granted Shore's motion and dismissed plaintiff's Labor Law § 241 (6) claim. The trial judge concluded that plaintiff had failed to rebut Shore's prima facie showing that section 23-1.12 (c) was inapplicable to a handheld electrically-driven grinder. As for section 23-9.2 (a), Supreme Court noted that Shore relied on Anarumo, Phillips, and Thompson all Second Department cases while plaintiff cited the Fourth Department's decision in Zacher v Niagara Frontier Servs. (210 AD2d 897 [4th Dept 1994]). In Zacher, the Fourth Department decided that "[t]he requirement that a plaintiff must allege violation of a specific safety regulation promulgated by the Commissioner . . . was satisfied by the assertion . . . that defendants violated 12 NYCRR 23-9.2 (a). That regulation, promulgated under Labor Law § 241 (6), imposes upon owners, contractors and their agents an affirmative duty of maintenance and inspection of power-operated equipment" (id. at 897-898 ...

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