Defendant appeals from an order of the Supreme Court, New York County (Joan M. Kenney, J.), entered March 10, 2011, which, insofar as appealed from, as limited by the briefs, denied its motion for summary judgment dismissing the Labor Law § 241(6) cause of action to the extent it is based on violations of Industrial Code (12 NYCRR) § 23-3.3(b)(3) and (c).
The opinion of the court was delivered by: Catterson, J.
Garcia v 225 E. 57th St. Owners, Inc.
Appellate Division, First Department
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.
Decided on April 26, 2012
Peter Tom, J.P. Richard T. Andrias James M. Catterson Sheila Abdus-Salaam Nelson S. Roman, JJ. Index
In this personal injury action in which the plaintiff alleges a violation of Labor Law § 241(6), the critical inquiry is not whether the plaintiff was engaged in the demolition or "dismantling" of a structure. Rather, we must decide if the breaking of a mirrored panel that injured plaintiff is the type of hazard contemplated by the Industrial Code provisions that plaintiff alleges were violated.
The following facts are undisputed: The plaintiff Carlos Garcia was employed by nonparty JMPB Enterprises, LLC as a laborer. The defendant owns a 22-story cooperative apartment building in Manhattan and contracted with JMPB to remove wall coverings including mirrored wall panels. JMPB was then to plaster, prime, and paint the walls.
The two-by-eight-foot panels were affixed to the surface of the walls with adhesive. The plaintiff removed the panels by wedging a spatula between the panel and the drywall. The plaintiff then tapped the spatula with a hammer to pry the panel loose. Several of the panels had broken while being removed. On January 16, 2007, the plaintiff was injured when a piece of panel he was removing broke and cut his hand.
The plaintiff commenced this action on April 23, 2007, alleging common-law negligence and violations of the Labor Law. After discovery, the defendant moved for summary judgment seeking dismissal of the complaint. In a decision and order dated March 10, 2011, the motion court granted summary judgment dismissing the Labor Law §§ 200 and 240(1) and common-law negligence claims and the Labor Law § 241(6) claim based on 12 NYCRR 23-1.7(e)(1) and (2) and an alleged OSHA violation, and denied that part of the motion seeking dismissal of plaintiff's § 241(6) claim insofar as it was based on 12 NYCRR 23-3.3(b)(3) and 23-3.3(c) on the ground that the plaintiff raised a triable issue of fact as to whether the work being performed on the premises was demolition. For the reasons set forth below, we reverse, and dismiss the remainder of the § 241(6) claim.
In relevant part, Labor Law § 241(6) states: "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein [...] The commissioner may make rules to carry into effect the provisions of this subdivision."
The Commissioner's rules are set forth in the Industrial Code, 12 NYCRR, part 23, which defines demolition work as: "work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or ...