RANDAZZO v. International Dismantling and Machinery Corp., third-party defendant-respondent.

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

Paul V. RANDAZZO, appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, defendant third-party plaintiff-respondent; International Dismantling and Machinery Corp., third-party defendant-respondent.

Decided: April 24, 2000

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, GABRIEL M. KRAUSMAN and NANCY E. SMITH, JJ. Edelman & Edelman, P.C., New York, N.Y. (Myron S. Rosen of counsel), for appellant. Richard W. Babinecz, New York, N.Y. (Helman R. Brook of counsel), for defendant third-party plaintiff-respondent. Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York, N.Y. (Anthony D. Grande of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (J. Leone, J.), entered March 22, 1999, which, upon a jury verdict in favor of the defendant, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

On November 12, 1990, the plaintiff was working for the third-party defendant International Dismantling and Machinery Corp. on an asbestos removal project at a generating plant of the defendant Consolidated Edison Company of New York (hereinafter Con Edison) in Staten Island, when plywood planks were blown onto him by a strong gust of wind, causing personal injuries.   Thereafter, the plaintiff commenced this action against Con Edison to recover damages for alleged violations of Labor Law §§ 200 and 241(6).

 With respect to the cause of action pursuant to Labor Law § 241(6), the plaintiff alleged violations of 12 NYCRR 23-2.1(a), 23-3.3(c), and 23-3.3(k)(1)(ii) of the Industrial Code. Although we agree with the plaintiff that those provisions of the Industrial Code contain the concrete specifications required to sustain a Labor Law § 241(6) cause of action (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Gawel v. Consolidated Edison Co. of N.Y., 237 A.D.2d 138, 139, 655 N.Y.S.2d 351;  Cafarella v. Harrison Radiator Div. of Gen. Motors, 237 A.D.2d 936, 938, 654 N.Y.S.2d 910), the Supreme Court properly concluded that those provisions are not applicable to the facts of this case and properly dismissed that cause of action (see generally, Conway v. Beth Israel Med. Ctr., 262 A.D.2d 345, 691 N.Y.S.2d 576).

 The plaintiff also contends that the verdict was against the weight of the evidence.   A jury verdict should be set aside as against the weight of the evidence only if the verdict could not have been reached on any fair interpretation of the evidence (see, Bilicki v. American Socy. for Prevention of Cruelty to Animals, 237 A.D.2d 239, 240, 655 N.Y.S.2d 387;  Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184).   The jury's determination that the work site where he was injured was not “in an unsafe condition” was a fair interpretation of the evidence.

The plaintiff's remaining contention, that the Supreme Court erred in instructing the jury that it could take into consideration any culpable conduct on his part, is without merit, as there was sufficient evidence to support the charge (see, Diemer v. Goad, 78 A.D.2d 752, 753, 432 N.Y.S.2d 740;  cf., Bell v. City of New York, 256 A.D.2d 290, 681 N.Y.S.2d 307).

MEMORANDUM BY THE COURT.

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