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Barbara BARRIOS, Plaintiff-Respondent, v. BOSTON PROPERTIES LLC, et al., Defendants-Respondents.
JT Magen & Co., Inc., Third-Party Plaintiff-Respondent, v. Donaldson Acoustics Co., Inc., Third-Party Defendant-Appellant.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered September 27, 2007, which, to the extent appealed from as limited by the brief, denied third-party defendant's motion for summary judgment dismissing the Labor Law § 200 and § 241(6) claims, unanimously modified, on the law, to dismiss the Labor Law § 241(6) claim, and otherwise affirmed, without costs.
That part of the motion that sought dismissal of the Labor Law § 200 claim was premature, since, as a result of the failure of all defendants to engage in discovery, the identity of the defendant that supervised and controlled the freight elevator into which plaintiff was loading door bucks was within defendants' exclusive knowledge (see CPLR 3212[f] ).
However, the Labor Law § 241(6) claim should have been dismissed because the Industrial Code (12 NYCRR) sections cited by plaintiff as predicates for this claim are inapplicable. The accident occurred on a loading dock or work area, not a “passageway, walkway, stairway, or other thoroughfare” (12 NYCRR 23-2.1[a][1]; see Waitkus v. Metropolitan Hous. Partners, 50 A.D.3d 260, 854 N.Y.S.2d 388 [2008] ). A freight elevator is not a “material hoist” as contemplated by the Code (12 NYCRR 23-6.1(d), 6.3(e)(3); 23-1.4[33]; see Lindstedt v. 813 Assoc., 238 A.D.2d 386, 656 N.Y.S.2d 319 [1997], lv. dismissed 90 N.Y.2d 1007, 666 N.Y.S.2d 101, 688 N.E.2d 1384 [1997], affg. in pertinent part 167 Misc.2d 273, 638 N.Y.S.2d 1022 [1996] ).
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Decided: October 07, 2008
Court: Supreme Court, Appellate Division, First Department, New York.
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