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Keneally v. 400 Fifth Realty LLC

Supreme Court of New York, First Department

October 29, 2013

David R. Keneally, Plaintiff-Respondent,
v.
400 Fifth Realty LLC, et al., Defendants-Appellants.

Malapero & Prisco LLP, New York (Frank J. Lombardo of counsel), for appellants.

Erlanger Law Firm PLLC, New York (Robert K. Erlanger of counsel), for respondent.

Friedman, J.P., Sweeny, Acosta, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 10, 2012, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's claim under Labor Law § 241(6), unanimously affirmed, without costs.

Industrial Code (12 NYCRR) 23-1.12(c)(1) is applicable because plaintiff was using a "power-driven saw" at the time of his accident within the meaning of that provision. Nonetheless, triable issues of fact exist as to whether the regulation was violated because the saw provided to plaintiff had a defective or inadequate "movable self-adjusting guard below the base plate, " which failed to "completely cover the saw blade to the depth of the teeth when such saw blade [was] removed from the cut" (12 NYCRR 23-1.12[c][1]; see Ortega v Everest Realty LLC, 84 A.D.3d 542, 544 [1st Dept 2011]). Plaintiff's co-worker testified that he used the saw shortly before plaintiff's accident and observed that the movable self-adjusting guard had been "sticking" and, therefore, it did not completely cover the saw blade when removed from the cut.

The court properly considered plaintiff's expert's affidavit on the question of whether a certain condition or omission was in violation of a regulation and the meaning of the terms used within the relevant Industrial Code provision (see Boruch v Morawiec, 51 A.D.3d 429 [1st Dept 2008], citing Franco v Jay Cee of N.Y. Corp., 36 A.D.3d 445, 448 [1st Dept 2007]).

The court did not abuse its discretion in declining to consider the affidavit of defendants' expert, which was submitted for the first time in reply. The affidavit was not addressed to the arguments made in plaintiff's opposition, and instead sought to assert new grounds for the motion (see AMBAC Assur. Corp. v DLJ Mtge. Capital, Inc., 92 A.D.3d 451, 452 [1st Dept 2012], citing Ritt v Lenox Hill Hosp., 182 A.D.2d 560, 562 [1st Dept 1992]).


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