MORRIS v. [And a Third-Party Action]. (2006)

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered February 7, 2005, which, insofar as appealed from, denied defendants' motion to dismiss plaintiff's cause of action under Labor Law § 241(6), unanimously reversed, on the law, without costs, defendants' motion granted, and plaintiff's cause of action under Labor Law § 241(6) dismissed.

At the time of his accident, plaintiff was constructing a temporary form for a wall.   The form was to consist of two parallel lines of metal panels, which would be connected to each other by spurs.   Concrete was then to be poured in between the two panels, which would be removed after the concrete hardened.   The record demonstrates that the uncompleted form for another wall, not the one plaintiff was working on, fell on him.   Plaintiff testified at his deposition that the form that fell on him had only one side, and thus was “ [n]ot created yet.”  12 NYCRR 23-2.2(a) provides:

“Forms, shores and reshores [for concrete work] shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.”

Since the form at issue was still in the process of being created, 12 NYCRR 23-2.2(a) is inapplicable, and plaintiff's Labor Law § 241(6) claim, predicated on that provision, fails.