DZIERAN v. RND (2006)

Order, Supreme Court, Bronx County (Mary Ann Briganti-Hughes, J.), entered May 2, 2005, which, inter alia, denied the motion of defendant 1800 Boston Road, LLC for summary judgment dismissing the complaint as against it and granted plaintiff's cross motion for partial summary judgment on his Labor Law § 240 and § 241(6) claims, and order, same court and Justice, entered August 10, 2005, which, upon reargument, adhered to the court's original determination, unanimously modified, on the law, the award of partial summary judgment to plaintiff on his Labor Law § 241(6) claim vacated and defendant's summary judgment motion granted insofar as to dismiss the § 241(6) claim, and otherwise affirmed, without costs.

 Plaintiff, while working without safety devices, fell approximately 10 feet off a platform that was being constructed for storage purposes.   The court properly granted plaintiff's cross motion for partial summary judgment on his Labor Law § 240(1) claim against defendant-appellant, the owner of the building undergoing renovation, since the lack of safety devices was a proximate cause of the accident and ensuing injuries (see John v. Baharestani, 281 A.D.2d 114, 721 N.Y.S.2d 625 [2001] ).   No triable issue of fact is presented as to whether plaintiff was appellant's special employee.   Although appellant and plaintiff's employer were managed by the same individual, the record discloses no evidence that plaintiff's employer transferred control over plaintiff to appellant (see Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991] ).

 There is, however, merit to appellant's contention that plaintiff's Labor Law § 241(6) claim should have been dismissed.   Plaintiff's reliance on alleged violations of 12 NYCRR §§ 23-1.15, 23-1.16 and 23-1.17 is misplaced.   Those sections, which set standards for safety railings, safety belts and life nets, respectively, do not apply because plaintiff was not provided with any such safety devices (see D'Acunti v. New York City School Constr. Auth., 300 A.D.2d 107, 108, 751 N.Y.S.2d 459 [2002] ).  12 NYCRR § 23-1.22(c) is inapplicable because the platforms contemplated by that section are “those used to transport vehicular and/or pedestrian traffic” (Curley v. Gateway Communications, Inc., 250 A.D.2d 888, 892, 672 N.Y.S.2d 523 [1998] ), and plaintiff was not working on such a platform.   Nor was there a violation of § 23-1.7(b) since plaintiff's fall was less than 15 feet (12 NYCRR § 23-1.7[b][1][iii][a] ).

We have considered appellant's remaining contentions and find them unavailing.