Becerra v. Promenade Apartments Inc.

126 A.D.3d 557, 6 N.Y.S.3d 42

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2015
• Docket: 14409 304708/10
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered March 5, 2014, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the Labor Law § 241 (6) claim predicated upon a violation of Industrial Code (12 NYCRR) § 23-1.5 (c) (3), reversed, on the law, without costs, and the motion denied.

Plaintiff testified that on the day of the accident, a foreman provided him with an angle grinder that did not have a safety guard, and instructed him to perform certain work despite the absence of such a guard. He contends that because other grinders at the site had guards, the instruction that he use the tile grinder without its guard, and the failure to remove the unguarded grinder from the work site, constituted violations of the “specific and concrete requirements” of 12 NYCRR 23-1.5 (c) (3).

The motion court erred in finding that section 23-1.5 (c) (3) was too general to support plaintiffs Labor Law § 241 (6) claim. Industrial Code (12 NYCRR) § 23-1.5 (c) (3) provides, “All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.” In Misicki v Caradonna (12 NY3d 511, 520-521 [2009]), the Court of Appeals held that the third sentence of 12 NYCRR 23-9.2 (a), which says, “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement,” imposed an affirmative duty, rather than merely reciting common-law principles, and that therefore its violation was sufficiently specific to support a Labor Law § 241 (6) claim. The regulation plaintiff relies on here, 12 NYCRR 23-1.5 (c), has a structure similar to 12 NYCRR 23-9.2 (a): the first two sentences of section 23-9.2 (a) and the first two paragraphs of section 23-1.5 (c) employ general phrases (e.g., “good repair,” “proper operating condition,” “sufficient inspections,” “adequate frequency”) while the third sentence and paragraph “mandate [ ] a distinct standard of conduct, rather than a general reiteration of common-law principles, and [are] precisely the type of ‘concrete specification’ that Ross [v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993])] requires” (Misicki, 12 NY3d at 521). Since the final paragraph of section 23-1.5 (c) is functionally indistinguishable from the third sentence of section 23-9.2 (a), in that both mandate a distinct standard of conduct, we find that the Court of Appeals’ reasoning in Misicki applies here, and reject the dissent’s suggestion that the preamble of section 23-1.5 precludes any reliance on the section for purposes of Labor Law § 241 (6).

Our dissenting colleague would affirm the motion court’s dismissal, not only because he views the relied-on regulation, 12 NYCRR 23-1.5 (c) (3), as too general, but also because it does not explicitly require guards for angle grinders. He takes the position that the only type of portable power-driven tools for which the Industrial Code requires guards are hand operated saws. We disagree. Section 23-1.5 (c) is explicitly concerned with the “[condition of equipment and safeguards” (emphasis added), and prohibits the use of “equipment which is not in good repair and in safe working condition” (§ 23-1.5 [c] [1]). Therefore, the directive in paragraph (3) that “[a] 11 safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged” provides a basis for liability under Labor Law § 241 (6) as long as such angle grinders were ordinarily or originally provided with safety guards.

We therefore conclude that defendants were not entitled to summary judgment dismissing the Labor Law § 241 (6) claim predicated upon a violation of Industrial Code (12 NYCRR) § 23-1.5 (c) (3).

Concur — Acosta, J.R, Andrias, Saxe and Richter, JJ.