SALERNO v. DIOCESE OF BUFFALO (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion with respect to the Labor Law § 241(6) claim insofar as it is based on the alleged violation of 12 NYCRR 23–1.5(c)(3) and reinstating that claim to that extent, and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries allegedly sustained by James Salerno (plaintiff) while he was working on a construction project at a cemetery in the Town of Tonawanda, Erie County, owned by defendants-appellants (defendants).  As part of his work, plaintiff was ordered to operate a “Bobcat skid-loader,” which had a safety bar that lowered onto the operator's lap.  When plaintiff raised the safety bar to exit the machine, the safety bar allegedly fell and struck him.

Supreme Court thereafter granted those parts of defendants' motion seeking summary judgment dismissing plaintiffs' Labor Law §§ 200 and 240(1) claims and the section 241(6) claim insofar as it alleged a violation of, inter alia, 12 NYCRR 23–1.5(c)(3), denied that part of defendants' motion seeking summary judgment dismissing plaintiffs' section 241(6) claim insofar as it alleged a violation of 12 NYCRR 23–9.2(a), and denied plaintiffs' cross motion for partial summary judgment on liability under section 240(1) against defendants.  Defendants appeal, and plaintiffs cross-appeal.  We now modify the order by denying that part of the motion with respect to the section 241(6) claim insofar as it alleges a violation of 12 NYCRR 23–1.5(c)(3), and we otherwise affirm.

Preliminarily, we reject defendants' contention that the court abused its discretion in refusing to strike plaintiffs' opposing papers as untimely (see generally Sheng Hai Tong v. K & K 7619, Inc., 144 A.D.3d 887, 890, 41 N.Y.S.3d 266 [2d Dept. 2016] ).

Turning to the merits, we conclude that, contrary to plaintiffs' contention on their cross appeal, the court properly granted defendants' motion with respect to the Labor Law § 240(1) claim because plaintiff was not injured as the result of any “ ‘physically significant elevation differential’ ” (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97, 7 N.Y.S.3d 263, 30 N.E.3d 154 [2015];  see Guallpa v. Canarsie Plaza, LLC, 144 A.D.3d 1088, 1091, 42 N.Y.S.3d 293 [2d Dept. 2016];  Desharnais v. Jefferson Concrete Co., Inc., 35 A.D.3d 1059, 1060, 827 N.Y.S.2d 312 [3d Dept. 2006] ).  We further conclude that, contrary to defendants' contention on their appeal, the court properly denied their motion with respect to the section 241(6) claim insofar as it alleged a violation of 12 NYCRR 23–9.2(a) because there are triable issues of fact whether plaintiff's employer had actual notice of a structural defect or unsafe condition regarding the safety bar (see Misicki v. Caradonna, 12 N.Y.3d 511, 520–521, 882 N.Y.S.2d 375, 909 N.E.2d 1213 [2009];  Shields v. First Ave. Bldrs. LLC, 118 A.D.3d 588, 588–589, 988 N.Y.S.2d 607 [1st Dept. 2014];  Salsinha v. Malcolm Pirnie, Inc., 76 A.D.3d 411, 412, 906 N.Y.S.2d 532 [1st Dept. 2010] ).  Finally, we agree with plaintiffs on their cross appeal that the court erred in granting defendants' motion with respect to the section 241(6) claim insofar as it alleges a violation of 12 NYCRR 23–1.5(c)(3) because that regulation is sufficiently specific to support a claim under section 241(6) (see Perez v. 286 Scholes St. Corp., 134 A.D.3d 1085, 1086, 22 N.Y.S.3d 545 [2d Dept. 2015];  Becerra v. Promenade Apts. Inc., 126 A.D.3d 557, 558, 6 N.Y.S.3d 42 [1st Dept. 2015] ).