Baranello v. Rudin Management Co.

Appellate Division of the Supreme Court of New York

Baranello v. Rudin Management Co.

13 A.D.3d 245, 785 N.Y.S.2d 918, 2004 N.Y. App. Div. LEXIS 15481

Appellate Division of the Supreme Court of the State of New York·Decided December 21, 2004·Published·Cited by 6 cases

Opinion

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered November 7, 2003, which, to the extent appealed from, denied defendant’s motion to dismiss plaintiff’s claim under Labor Law § 241 (6) based on Industrial Code (12 NYCRR) § 23-3.3, unanimously reversed, on the law, without costs, the motion granted, and the claim dismissed.

There is no triable issue of fact as to the nature of the work being conducted at the site; it did not constitute demolition work as required for the application of the relied-upon section of the Industrial Code. “Demolition work” is defined in the Industrial Code (see 12 NYCRR 23-1.4 [b] [16]) as “[t]he work [246] incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment.” As this Court held in Quinlan v City of New York (293 AD2d 262, 263 [2002]), the removal of a portion of a wall does not constitute demolition work as defined in 12 NYCRR 23-1.4 (b) (16) (cf. Zuniga v Stam Realty, 169 Misc 2d 1004 [1996], affd 245 AD2d 561 [1997]), lv denied 91 NY2d 813 [1998]). Concur—Tom, J.E, Saxe, Lerner and Sweeny, JJ.

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Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered November 7, 2003, which, to the extent appealed from, denied defendant’s motion to dismiss plaintiff’s claim under Labor Law § 241 (6) based on Industrial Code (12 NYCRR) § 23-3.3, unanimously reversed, on the law, without costs, the motion granted, and the claim dismissed.

There is no triable issue of fact as to the nature of the work being conducted at the site; it did not constitute demolition work as required for the application of the relied-upon section of the Industrial Code. “Demolition work” is defined in the Industrial Code (see 12 NYCRR 23-1.4 [b] [16]) as “[t]he work [246] incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment.” As this Court held in Quinlan v City of New York (293 AD2d 262, 263 [2002]), the removal of a portion of a wall does not constitute demolition work as defined in 12 NYCRR 23-1.4 (b) (16) (cf. Zuniga v Stam Realty, 169 Misc 2d 1004 [1996], affd 245 AD2d 561 [1997]), lv denied 91 NY2d 813 [1998]). Concur—Tom, J.E, Saxe, Lerner and Sweeny, JJ.

Baranello v. Rudin Management Co., 13 A.D.3d 245, 785 N.Y.S.2d 918, 2004 N.Y. App. Div. LEXIS 15481 (N.Y. Ct. App. 2004).

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