Heron v. J.S. Alberici Construction Co.

Appellate Division of the Supreme Court of New York

Heron v. J.S. Alberici Construction Co.

1 A.D.2d 1031, 767 N.Y.S.2d 370, 1 A.D.3d 1031, 2003 N.Y. App. Div. LEXIS 12380

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 21, 2003

StatusPublished

This text of 1 A.D.2d 1031 (Heron v. J.S. Alberici Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Heron v. J.S. Alberici Construction Co., 1 A.D.2d 1031, 767 N.Y.S.2d 370, 1 A.D.3d 1031, 2003 N.Y. App. Div. LEXIS 12380 (N.Y. Ct. App. 2003).

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Opinion

Appeals from an order of Supreme Court, Erie County (Cosgrove, J.), entered October 30, 2002, which, inter alia, denied that part of the cross motion of fourth-party defendant for summary judgment seeking dismissal of plaintiff’s claim pursuant to Labor Law § 241 (6).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the cross motion of fourth-party defendant seeking dismissal of plaintiffs claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2 and as modified the order is affirmed without costs.

Memorandum: We conclude that Supreme Court erred in denying that part of the cross motion of fourth-party defendant seeking dismissal of plaintiff’s claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2. Those regulations apply to the use of equipment not used at the time of plaintiffs injury (see Jacome v State of New York, 266 AD2d 345, 347 [1999]). We therefore modify the order accordingly. We otherwise affirm the order for the reasons stated in the decision at Supreme Court (Cosgrove, J.). Present—Wisner, J.P, Hurlbutt, Scudder, Gorski and Lawton, JJ.

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Appeals from an order of Supreme Court, Erie County (Cosgrove, J.), entered October 30, 2002, which, inter alia, denied that part of the cross motion of fourth-party defendant for summary judgment seeking dismissal of plaintiff’s claim pursuant to Labor Law § 241 (6).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the cross motion of fourth-party defendant seeking dismissal of plaintiffs claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2 and as modified the order is affirmed without costs.

Memorandum: We conclude that Supreme Court erred in denying that part of the cross motion of fourth-party defendant seeking dismissal of plaintiff’s claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2. Those regulations apply to the use of equipment not used at the time of plaintiffs injury (see Jacome v State of New York, 266 AD2d 345, 347 [1999]). We therefore modify the order accordingly. We otherwise affirm the order for the reasons stated in the decision at Supreme Court (Cosgrove, J.). Present—Wisner, J.P, Hurlbutt, Scudder, Gorski and Lawton, JJ.

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1 A.D.2d 1031, 767 N.Y.S.2d 370, 1 A.D.3d 1031, 2003 N.Y. App. Div. LEXIS 12380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heron-v-js-alberici-construction-co-nyappdiv-2003.

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