CHARLES v. SUMMIT GLORY LLC (2020)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered January 24, 2019, which, insofar as appealed from, granted defendants' motion to dismiss the Labor Law § 241(6) cause of action predicated upon Industrial Code (12 NYCRR) § 23–1.10(a), unanimously affirmed, without costs.

Plaintiff was injured when his right forearm was struck by a metal shard that flew from the “mushroomed” head of a “drift pin” that a coworker was hammering with a sledgehammer. A drift pin is a tapered metal hand tool that is hammered into the holes of steel beams to align them, and once the holes are aligned, the drift pin is removed and a bolt is put through the holes to secure the beams. According to defendants' proof, the subject drift pin was about one foot long, one inch in diameter and “round.”

Plaintiff claims that defendants violated 12 NYCRR 23–1.l0(a), which provides that “[e]dged tools shall be kept sharp and shall be maintained free from burrs and mushroomed heads.” We have previously found the regulation inapplicable to tools that have “flat and/or round edges” (Pol v. City of New York, 126 A.D.3d 526, 526, 2 N.Y.S.3d 895 [1st Dept. 2015], lv denied 25 N.Y.3d 912, 2015 WL 3952228 [2015]), and since plaintiff has not submitted any proof showing that the drift pin was a tool with a sharp edge, the claim was properly dismissed.