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Opalinski v. City of New York

Supreme Court of New York, Second Department

October 2, 2013

Witold Opalinski, appellant,
v.
City of New York, et al., respondents. Index No. 11177/09

Lipsig Shapey Manus & Moverman, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Debra A. Adler and Mathew P. Ross of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from so much of (1) an order of the Supreme Court, Queens County (Nahman, J.), dated December 6, 2011, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), and (2) an order of the same court dated March 29, 2012, as, upon resettlement, vacated so much of the order dated December 6, 2011, as denied that branch of the defendants' motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200, and substituted therefor a provision granting that branch of the defendants' motion.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

On July 23, 2008, the plaintiff was working on a renovation project at a New York City public school when the hand-held angle grinder he was holding spun out of control and the blade allegedly cut into his left hand. The plaintiff was an employee of a nonparty subcontractor hired by the defendant Deborah Bradley Construction & Management Services, Inc., the general contractor, to perform the exterior work at the school.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging common-law negligence and a violation of Labor Law § 200 "by demonstrating that the subject accident was caused by the means and methods of the plaintiff's work, that the plaintiff's work was directed and controlled by his employer, and that they had no authority to exercise supervisory control over his work" (Koat v Consolidated Edison of N.Y., Inc., 98 A.D.3d 474, 475-476; see Schwind v Mel Lany Constr. Mgt. Corp., 95 A.D.3d 1196, 1198; Robinson v County of Nassau, 84 A.D.3d 919, 920; Cambizaca v New York City Tr. Auth., 57 A.D.3d 701, 702). The deposition testimony submitted by the plaintiff in opposition, establishing that the defendants had retained "[t]he right to generally supervise the work, stop the contractor's work if a safety violation [was] noted, or to ensure compliance with safety regulations and contract specifications" (Torres v Perry Street Dev. Corp., 104 A.D.3d 672, 676 [internal quotation marks and citations omitted]; see Allan v DHL Express [ USA ], Inc., 99 A.D.3d 828, 832; Robinson v County of Nassau, 84 A.D.3d at 920; Cambizaca v New York City Tr. Auth., 57 A.D.3d at 702), was insufficient to raise a triable issue of fact (see Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). The plaintiff's argument with regard to an alleged "dangerous premise condition, " raised for the first time on appeal, is not properly before this Court (see Jamindar v Uniondale Union Free School Dist., 90 A.D.3d 612, 617). While it is true that "[an] issue may be raised for the first time on appeal [where] it is one of law appearing on the face of the record and... could not have been avoided had it been raised at the proper juncture" (Matter of Bayley Seton Hosp. v New York City Water Bd., 66 A.D.3d 670, 672), contrary to the plaintiff's contention, this is not such an issue (cf. Matter of Richardson v Fiedler Roofing, Inc., 67 N.Y.2d 246; Matter of Bayley Seton Hosp. v New York City Water Bd., 66 A.D.3d at 672). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200.

Likewise, the Supreme Court did not err in granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6). To prevail on such a cause of action, a plaintiff must demonstrate "that his injuries were proximately caused by a violation of an Industrial Code provision which sets forth specific safety standards, and is applicable to the facts of the case" (Parker v 205-209 E. 57th St. Assoc., LLC, 100 A.D.3d 607, 608; see Norero v 99-105 Third Ave. Realty, LLC, 96 A.D.3d 727, 728; Ferrero v Best Modular Homes, Inc., 33 A.D.3d 847, 851). Here, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 241(6) (see Zuckerman v City of New York, 49 N.Y.2d 557, 562), the plaintiff failed to raise a triable issue of fact with regard to the applicability of Industrial Code § 23-1.12(c)(1) (12 NYCRR 23-1.12[c][1]), a regulation which relates to power-driven saws, and which, as this Court held in Cabrera v Revere Condominium (91 A.D.3d 695), does not apply to grinders (id. at 697). As to the alleged violation of Industrial Code § 23-1.10(b)(1) (12 NYCRR 23-1.10[b][1]), requiring that the on/off switch be "within easy reach of the operator, " the plaintiff's own testimony established that he could not get to the on/off switch because the grinder had "jumped" out of his hands when the power suddenly came on, not because of where the switch was placed on the grinder itself. Accordingly, the plaintiff failed to raise a triable issue of fact as to whether a violation of Industrial Code § 23-1.10(b)(1) proximately caused his injuries (see generally Alvarez v Prospect Hosp., 68 N.Y.2d at 324; Zuckerman v City of New York, 49 N.Y.2d at 562).

MASTRO, J.P., DILLON and DICKERSON, JJ., concur.

AUSTIN, J., concurs in part and dissents in part, and votes to modify the order dated December 6, 2011, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as it was premised upon a violation of Industrial Code § 23-1.10(b)(1) (12 NYCRR 23-1.10[b][1]), and substituting therefor a provision denying that branch of the motion, otherwise affirm the order dated December 6, 2011, insofar as appealed from, and affirm the order dated March 29, 2012, insofar as appealed from, with the following memorandum.

I agree with the determination that the defendants were entitled to summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200. Moreover, under constraint of Cabrera v Revere Condominium (91 A.D.3d 695), I agree that the cause of action alleging a violation of Labor Law § 241(6) insofar as it was premised upon a violation of Industrial Code § 23-1.12(c)(1) (12 NYCRR 23-1.12[c][1]) was properly dismissed, as that provision relates to power-driven saws and not grinders. In Cabrera, this Court distinguished the Court of Appeals' decision in St. Louis v Town of N. Elba (16 N.Y.3d 411) when it concluded that a hand-held grinder is not a "saw" within the meaning of Industrial Code § 23-1.12(c)(1) (see Cabrera v Revere Condominium, 91 A.D.3d at 697). Accordingly, I am constrained to concur that the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as it was premised upon a violation of Industrial Code § 23-1.12(c)(1).

However, I respectfully dissent from the determination that the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged violation of Industrial Code § 23-1.10(b)(1), which requires that "[e]very electric... hand tool shall be equipped with a cut-off switch within easy reach of the operator, " proximately caused his injuries. I find that the plaintiff raised a triable issue of fact with respect to this alleged violation. When deposed, the plaintiff testified that, immediately before the electric outlet started to feed electricity to the grinder, he tried to turn it off, but it jumped out of his hand. The sequence of events as related by the plaintiff presents a triable issue of fact as to whether the claimed absence of an accessible cut-off switch was a proximate cause of his injury (see Shields v General Elec. Co., 3 A.D.3d 715, 718; cf. Gonzalez v City of New York, 304 A.D.2d 709, 710).

Accordingly, that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as it was premised upon a violation of Industrial Code § 23-1.10(b)(1) should have been denied.


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