SOLIS v. 32 SIXTH AVENUE COMPANY LLC

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Supreme Court, Appellate Division, First Department, New York.

Carlos SOLIS, Plaintiff-Appellant, v. 32 SIXTH AVENUE COMPANY LLC, et al., Defendants-Respondents.

Decided: March 22, 2007

TOM, J.P., ANDRIAS, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Stuart R. Lang, New York, for appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louis H. Klein of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 4, 2006, which, to the extent appealed from as limited by the briefs, granted summary judgment dismissing plaintiff's Labor Law § 241(6) cause of action, unanimously affirmed, with costs.

Defendants contracted Alpine Construction & Development Corp. to perform exterior facade repairs, which included all masonry repairs indicated on the contract documents and/or as directed by owner.   Plaintiff, employed by Alpine, was working with a co-worker on a scaffold at the 36th floor of the building, using an electric hammer to remove bricks, when he tripped while standing on a foot high “mountain” of debris generated by the work.   Defendants submitted sufficient proof to establish their prima facie case, thereby shifting the burden to plaintiff.

 Industrial Code (12 NYCRR) § 23-3.3(b)(5) and (e) does not support plaintiff's Labor Law § 241(6) claim.   The project did not call for the dismantling or razing of a building or structure, in whole or in part, and there were no contemplated changes to the structural integrity of the building.   The masonry repair work being performed does not fall within the purview of “demolition” as defined in § 23-1.4(b)(16) (see Baranello v. Rudin Mgt. Co., 13 A.D.3d 245, 785 N.Y.S.2d 918 [2004], lv. denied 5 N.Y.3d 706, 801 N.Y.S.2d 799, 835 N.E.2d 659 [2005] ).

 Nor is 12 NYCRR § 23-1.7(e)(2) applicable, because the debris covering the scaffold resulted directly from the masonry work plaintiff and his co-worker were performing, and thus constituted an integral part of that work (Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559 [2003] ).

 The conclusory opinion by plaintiff's expert, that the amount of debris on the scaffold exceeded the amount contemplated by the regulation, was speculative and unsupported by industry standards, and thus insufficient to withstand summary judgment (Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002];  see also DeLeon v. State of New York, 22 A.D.3d 786, 788, 803 N.Y.S.2d 692 [2005], lv. denied 7 N.Y.3d 701, 818 N.Y.S.2d 191, 850 N.E.2d 1166 [2006] ).