CLYDE COLEMAN AND VERTRELL COLEMAN PLAINTIFFS APPELLANTS v. ISG LACKAWANNA SERVICES LLC ISG LACKAWANNA LLC AND ISG INC DEFENDANTS RESPONDENTS (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the Labor Law § 241(6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-2.1(b) and reinstating the derivative cause of action and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Clyde Coleman (plaintiff) when he was operating a diesel-powered water blasting unit (unit) at defendants' facility.   We note at the outset that the only issues not abandoned by plaintiffs' appeal concern the Labor Law § 241(6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-1.10(b) and 12 NYCRR 23-2.1(b) (see Ciesinski v. Town of Aurora, 202 A.D.2d 984).

We reject the contention of plaintiffs that Supreme Court erred in granting that part of defendants' motion seeking summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-1.10(b).  Defendants met their burden of establishing that 12 NYCRR 23-1.10(b) is not applicable to the facts of this case because the unit is not an electrical or pneumatic hand tool (see Szafranski v Niagara Frontier Transp.   Auth., 5 AD3d 1111, 1113).   We agree with plaintiffs, however, that the court erred in dismissing the Labor Law § 241(6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-2.1(b), and we therefore modify the order accordingly.   Section 241(6) applies to “[a]ll areas in which ․ demolition work is being performed” and, pursuant to the Industrial Code, demolition work means “work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment” (12 NYCRR 23-1.4[b][16];  see Wade v Atlantic Cooling Tower Servs., Inc., 56 AD3d 547, 549;  Pino v. Robert Martin Co., 22 AD3d 549, 551-552;  Lozo v. Crown Zellerbach Corp., 142 A.D.2d 949).   Defendants failed to establish as a matter of law that plaintiff's work was not “incidental to or associated with the ․ dismantling” of the skin mill at their facility (see Ruiz v. 8600 Roll Rd., 190 A.D.2d 1030, 1031;  cf.  Rosen v. General Elec. Co., 204 A.D.2d 978;  Meehan v. Mobil Oil Corp., 184 A.D.2d 1021, lv denied 85 N.Y.2d 804, lv dismissed 80 N.Y.2d 925).   Further, contrary to defendants' contention, 12 NYCRR 23-2.1(b) is sufficiently specific to support the Labor Law § 241(6) cause of action (see Scally v Regional Indus.   Partnership, 9 AD3d 865, 868;  Kvandal v Westminister Presbyt.   Socy. of Buffalo, 254 A.D.2d 818), and defendants failed to establish that the regulation is not applicable to the facts of this case (cf.  Scally, 9 AD3d at 868).

Patricia L. Morgan

Clerk of the Court