ESPOSITO v. ORSAGNA (1997)

Order, Supreme Court, Bronx County (Anne Targum, J.), entered December 19, 1995, which, in an action pursuant to Labor Law § 241(6), insofar as appealed from, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, employed by a contractor hired by defendants owners to repair a roof leak, alleges that after he and his co-workers had performed the repair and put all of their materials and tools in their van, and after having cleaned tar from his hands with gasoline and wiping his hands on his pants leg, a co-worker lit a cigarette, whereupon an ash struck his pants leg causing it to ignite with resulting injuries.   Plaintiff seeks to recover under Labor Law § 241(6), claiming violations of 12 NYCRR 23-1.7(h), 1.8(c)(4), and 1.9(d) requiring, respectively, safe use and storage of corrosive substances, provision of protective apparel to employees required to use corrosive substances, and provision of washing facilities to employees required to use corrosive substances.   However, as the IAS court noted, the list of corrosive substances attached to the affidavit of plaintiff's expert does not include gasoline, undermining the expert's claim in the body of her affidavit that it is.   And, assuming that gasoline is a corrosive substance, plaintiff failed to adduce evidence that he was required to use or handle gasoline, and effectively conceded that the building he was working on was equipped with appropriate and available washing facilities.   It is also clear that at the time of the accident the roofing repair was complete, all the materials and tools had already been placed in the van, and plaintiff had already finished cleaning his hands, and that plaintiff, therefore, was not then performing work that was part of or incidental to the roof work (cf., Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117).

MEMORANDUM DECISION.