VOLQUEZ v. WADE HAMPTON APARTMENTS INC (2026)

William Schwitzer & Associates, P.C., New York (Travis K. Wong of counsel), appellant.

Milber Makris Plousadis & Seiden, LLP, Purchase (Michael C. Troiano of counsel) for respondents.

Order, Supreme Court, Bronx County (Myrna Socorro, J.), entered on or about January 3, 2025, which, insofar as appealed from as limited by the briefs, granted so much of the motion of defendants Wade Hampton Apartments, Inc., 2166 Associates, LLC, and Trion Real Estate Management LLC for summary judgment dismissing plaintiff's Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) §§ 23–1.12(c)(1), 23–1.5(c)(3), and 23–9.2(a), unanimously reversed, on the law, without costs, the motion denied, and the claim reinstated.

Plaintiff, who alleges that he was injured when the circular saw being operated by his co-worker cut plaintiff's finger, correctly argues that his Labor Law § 241(6) claim based on Industrial Code § 23–1.12(c)(1) is not barred simply because he was not the operator of the saw (see Markey v. C.F.M.M. Owners Corp., 51 AD3d 734, 737 [2d Dept 2008] [“Supreme Court properly found that the defendants failed to establish their entitlement to judgment as a matter of law with respect to the alleged violation of 12 NYCRR 23–1.12(c)(1)” where the plaintiff was struck by a piece of wood expelled from an electric miter saw operated by his employer] ).  Moreover, plaintiff raised an issue of fact as to whether defendants violated the second clause of that Industrial Code section.  That clause, which does not refer to the operator, requires that saws like the one at issue have “a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut.”  Plaintiff's testimony that he had observed on occasions preceding the accident that the part of the saw that secured the blade would get “stuck,” and that the bottom part of the saw did not provide protection from the saw's disk is sufficient to raise an issue of fact.

Plaintiff's testimony further served to create an issue of fact as to the applicability of Industrial Code section 23–1.5(c)(3), which requires that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable” (see Williams v. River Place II, LLC, 145 AD3d 589, 589–590 [1st Dept 2016] ).

Finally, this Court has found that a grinder and miter saw lacking protective guards are the types of power-operated equipment that fall within the purview of Industrial Code § 23–9.2(a) (see Bacchus v. 676 E. 179 LLC, 248 AD3d 640, 640–641 [1st Dept 2026];  Alameda–Cabrera v Noble Elec. Contr.  Co., Inc., 117 AD3d 484, 485–486 [1st Dept 2014] ).  That section requires that “[u]pon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.”

Plaintiff raised an issue of fact as to whether defendants violated the section by presenting evidence that the saw that injured him had an obvious defect, which supports the inference that they knew or should have known that the saw needed to be repaired.