SAJID v. TRIBECA NORTH ASSOCIATES

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

Gulzar SAJID, Plaintiff-Appellant, v. TRIBECA NORTH ASSOCIATES L.P., et al., Defendants-Respondents,

Tribeca North Condominium, Defendant. Tribeca North Associates L.P., et al., Third-Party Plaintiffs, v. Faratone International Trading & Contracting, et al., Third-Party Defendants-Respondents.

Decided: July 07, 2005

BUCKLEY, P.J., MARLOW, ELLERIN, GONZALEZ, SWEENY, JJ. Robin Mary Heaney, Rockville Centre, for appellant. Smith & Laquercia, LLP, New York (Charles R. Strugatz of counsel), for Tribeca North Associates L.P. and Martin Joffe, respondents. McMahon, Martine & Gallagher, LLP, New York (Patrick W. Brophy of counsel), for Faratone International Trading & Contracting and FITCO Builders, Inc., respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered August 21, 2003, which, to the extent appealed from as limited by the briefs, granted third-party defendants' motion for summary judgment dismissing plaintiff's claims under Labor Law § 240(1) and § 241(6), and order, same court and Justice, entered January 6, 2004, which, upon reargument, dismissed the remaining causes of action under Labor Law § 200 and for common-law negligence, and granted judgment dismissing the complaint, affirmed, without costs.

 While working at a building undergoing renovation, plaintiff suffered a crush injury to his finger as he and two coworkers lost control of a hoist counterweight they were attempting to lift and dismantle.   The Labor Law § 240(1) cause of action was properly dismissed because the counterweight was at waist level and fell only 8 inches onto plaintiff's finger.   The counterweight was not elevated above the work site, nor did plaintiff's activities involve the extraordinary elevation-related risks contemplated by the statute (see Melo v. Consolidated Edison Co. of N.Y., 92 N.Y.2d 909, 680 N.Y.S.2d 47, 702 N.E.2d 832 [1998];  see also Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134 [1994] ).

 The Labor Law § 241(6) cause of action was properly dismissed because the Industrial Code section upon which plaintiff relies (12 NYCRR 23-1.5[c][1] ) is a general safety directive, insufficient as a predicate for such liability (see Maldonado v. Townsend Ave. Enters., 294 A.D.2d 207, 741 N.Y.S.2d 696 [2002];  Sihly v. New York City Tr. Auth., 282 A.D.2d 337, 723 N.Y.S.2d 189 [2001], lv. dismissed 96 N.Y.2d 897, 730 N.Y.S.2d 793, 756 N.E.2d 81 [2001];  Hawkins v. City of New York, 275 A.D.2d 634, 713 N.Y.S.2d 311 [2000] ).

 The Labor Law § 200 and common-law negligence claims were properly dismissed because there was no evidence that defendants exercised supervisory control over the work in which plaintiff was injured (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993] ).

I concur in the majority's affirmance of the dismissal of plaintiff's Labor Law § 240(1) claim and his § 200 and common-law negligence claims.   However, I would reverse the dismissal of plaintiff's § 241(6) claim.

Of the conflicting decisions issued by this Court as to whether the Industrial Code provision on which plaintiff relies is sufficiently specific to constitute a predicate for a Labor Law § 241(6) claim, I would follow those that hold that a mandate to employers to insure that equipment is in good repair and in safe working condition (12 NYCRR 23-1.5[c][1] ) is sufficiently specific (see Gonzalez v. United Parcel Serv., 249 A.D.2d 210, 671 N.Y.S.2d 753 [1998];  McCormack v. Helmsley-Spear, Inc., 233 A.D.2d 203, 649 N.Y.S.2d 697 [1996] ), particularly in view of plaintiff's safety expert's statement that the stone that was used as a counterweight and caused plaintiff's injury was not a standard counterweight, in that it had no hand holes or handles to permit it to be lifted and placed without exposing the hands or fingers to crush-type injuries, and that its use violated § 23-1.5(c)(1).

All concur except ELLERIN, J. who concurs in part and dissents in part in a separate memorandum as follows: