DUBIN v. DiFAZIO AND SONS CONSTRUCTION INC (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from (1) so much of an order of the Supreme Court, Queens County (Weiss, J.), dated May 12, 2005, as granted that branch of the motion of the defendant Taru Associates Corp., which was for summary judgment dismissing the cause of action to recover damages pursuant to Labor Law § 241(6) insofar as asserted against it, and (2) so much of an order of the same court dated August 18, 2005, as granted those branches of the respective motions of the defendants DiFazio and Sons Construction, Inc., and Restani Construction, d/b/a Excellent Asphalt Paving and Construction, which were for summary judgment dismissing the cause of action to recover damages pursuant to Labor Law § 241(6) insofar as asserted against them.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

 “[T]he question of whether inspection work falls within the purview of Labor Law § 240(1) and § 241(6) ‘must be determined on a case-by-case basis, depending on the context of the work’ ” (Nelson v. Sweet Assoc., 15 A.D.3d 714, 715, 788 N.Y.S.2d 705, quoting Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 883, 768 N.Y.S.2d 178, 800 N.E.2d 351).   Here, the plaintiff, an inspector for the New York City Department of Design and Construction, was a “covered” person under Labor Law § 241(6) insofar as his inspections were essential, ongoing, and more than mere observation (see Prats v. Port Auth. of N.Y. & N.J., supra;  England v. Vacri Constr. Corp., 24 A.D.3d 1122, 807 N.Y.S.2d 669;  Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 7, 747 N.Y.S.2d 218;  Reisch v. Amadori Constr. Co., 273 A.D.2d 855, 709 N.Y.S.2d 726;  Aubrecht v. Acme Elec. Corp., 262 A.D.2d 994, 692 N.Y.S.2d 544;  cf. Martinez v. City of New York, 93 N.Y.2d 322, 690 N.Y.S.2d 524, 712 N.E.2d 689).

 Nevertheless, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that Industrial Code regulations 12 NYCRR 23-1.7(e)(1) and (2) were inapplicable insofar as the plaintiff allegedly tripped on an object that was an integral part of the work being performed at the site of his accident (see McDonagh v. Victoria's Secret, 9 A.D.3d 395, 396-397, 781 N.Y.S.2d 525;  Castillo v. Starrett City, 4 A.D.3d 320, 772 N.Y.S.2d 74;  Schroth v. New York State Thruway Auth., 300 A.D.2d 1044, 752 N.Y.S.2d 478;  Harvey v. Morse Diesel Int., 299 A.D.2d 451, 453, 750 N.Y.S.2d 117;  Beltrone v. City of New York, 299 A.D.2d 306, 749 N.Y.S.2d 271;  Alvia v. Teman Elec. Cont., 287 A.D.2d 421, 731 N.Y.S.2d 462;  Adams v. Glass Fab, 212 A.D.2d 972, 624 N.Y.S.2d 705).   In opposition, the plaintiff failed to raise a triable issue of fact (see Furino v. P & O Ports, 24 A.D.3d 502, 806 N.Y.S.2d 227).

The plaintiff's remaining contentions are without merit.