Singh v. 106-108 Bayard Street Corp.

Appellate Division of the Supreme Court of New York

Singh v. 106-108 Bayard Street Corp.

300 A.D.2d 31, 750 N.Y.S.2d 496, 2002 N.Y. App. Div. LEXIS 11724

Appellate Division of the Supreme Court of the State of New York·Decided December 5, 2002·Published·Cited by 2 cases

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered January 7, 2000, which, inter alia, denied defendant’s cross motion insofar as it sought summary judgment dismissing plaintiffs Labor Law § 241 (6) and § 200 claims, unanimously affirmed, without costs.

Contrary to defendant’s contention, the “safety hat” provision of the Industrial Code (12 NYCRR 23-1.8 [c] [1]) is sufficiently concrete and specific in its mandate to support plaintiffs Labor Law § 241 (6) claim (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; and see McByrne v Ambassador Constr. Co., 290 AD2d 243). Defendant’s argument that plaintiff, at the time of his accident, was not engaged in an activity covered by Labor Law § 241 (6) (see 12 NYCRR 23-1.4 [b] [13]; and see Joblon v Solow, 91 NY2d 457, 466), is concededly made for the first time on appeal, and we decline to reach it (see Reliance Natl. Ins. Co. v Sapiens Intl. Corp., 243 AD2d 406). Were we to reach it, we would find it meritless (see Noriega v State St. Bank, 271 AD2d 313, 314).

In light of Leong’s testimony, there is a question of fact as to the owner’s supervisory control over the work in question. Accordingly, summary judgment was appropriately denied with respect to Labor Law § 200.

We have considered defendant’s remaining arguments and find them unavailing. Concur — Williams, P.J., Ellerin, Rubin, Marlow and Gonzalez, JJ.

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—Order, Supreme Court, New York County (Jane Solomon, J.), entered January 7, 2000, which, inter alia, denied defendant’s cross motion insofar as it sought summary judgment dismissing plaintiffs Labor Law § 241 (6) and § 200 claims, unanimously affirmed, without costs.

Contrary to defendant’s contention, the “safety hat” provision of the Industrial Code (12 NYCRR 23-1.8 [c] [1]) is sufficiently concrete and specific in its mandate to support plaintiffs Labor Law § 241 (6) claim (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505; and see McByrne v Ambassador Constr. Co., 290 AD2d 243). Defendant’s argument that plaintiff, at the time of his accident, was not engaged in an activity covered by Labor Law § 241 (6) (see 12 NYCRR 23-1.4 [b] [13]; and see Joblon v Solow, 91 NY2d 457, 466), is concededly made for the first time on appeal, and we decline to reach it (see Reliance Natl. Ins. Co. v Sapiens Intl. Corp., 243 AD2d 406). Were we to reach it, we would find it meritless (see Noriega v State St. Bank, 271 AD2d 313, 314).

In light of Leong’s testimony, there is a question of fact as to the owner’s supervisory control over the work in question. Accordingly, summary judgment was appropriately denied with respect to Labor Law § 200.

We have considered defendant’s remaining arguments and find them unavailing. Concur — Williams, P.J., Ellerin, Rubin, Marlow and Gonzalez, JJ.

Singh v. 106-108 Bayard Street Corp., 300 A.D.2d 31, 750 N.Y.S.2d 496, 2002 N.Y. App. Div. LEXIS 11724 (N.Y. Ct. App. 2002).

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Opinion

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