Appellate Court Allows Case to Proceed Where Defendant Owner Allegedly Failed to Provide Protective Gear on Construction Site

The New York Supreme Court, Appellate Division, Second Department in Montenegro v P12, LLC, 2015 NY Slip Op 05919 [130 AD3d 695] reversed a lower court’s decision granting a defendant’s motion for summary judgment to dismiss a cause of action alleging a violation of Labor Law § 241(6), predicated on 12 NYCRR 23-1.8(a).

The plaintiff was employed as a carpenter on a renovation project at a premises owned by the defendant.  The plaintiff was injured while using a pneumatic nail gun to attach molding around a window.  He was struck in the eye with a nail and sustained injuries to the eye.

As a result, the plaintiff commenced a suit against the defendant alleging negligence and violation of Labor Law § 241(6).  He further alleged that the defendant failed to provide adequate eye protection while using the nail gun.

roof workAccording to New York Labor Law § 241(6), all areas in which construction, excavation or demolition work is being performed, must be operated in such a manner as to provide reasonable and adequate protection and safety to all individuals employed or lawfully present in such areas.  The plaintiff contended that the defendant violated this provision because he was not given proper protective gear while working in the construction zone.

The defendants moved for summary judgment to dismiss denying the allegations that the defendant failed to provide protective gear in a construction area; the Supreme Court granted the motion in its entirety.  The plaintiff appealed the Supreme Court’s decision stating that triable issues of fact existed—thus, the court made an error in granting the defendant’s motion for summary judgment.

In order for a defendant to successfully win on a motion for summary judgment to dismiss a cause of action, the defendant must prove that there are no triable issues of fact to merit further litigation on the cause of action.  Here, the plaintiff argued that a triable issue of fact existed and that the defendant’s motion failed to establish whether, at the time of the plaintiff’s injury, the plaintiff was engaged in work that “may endanger the eyes,” to require the use of eye protection required by 12 NYCRR 23-1.8(a).

Under New York Labor Labor Law, Part 23, Protection in Construction, Demolition, and Excavation Operations, New York State requires that appropriate eye protection be provided to individuals and must be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes. 12 NYCRR 23-1.8(a).  The plaintiff alleges that at the time of plaintiff’s injury, he was not given any protective gear, thus violating 12 NYCRR 23-1.8(a) of New York Labor Law.

Although the defendant tried to prove that they had not violated the statute, the Appellate Division held that defendant did not meet its burden to prove that no triable issues of fact existed.  For example, the court held that there still was a question as to whether the plaintiff’s use of the nail gun at the time of the accident made the possibility of injury to the plaintiff’s eye foreseeable as to require eye protection.  Further, the defendant also failed to address whether approved eye protection was ever provided on the date of the accident while the plaintiff was engaged in his work.

Therefore, the defendant did not establish a showing of entitlement to a judgment as a matter of law, which merited dismissal of plaintiff’s claim.  Accordingly, the Appellate Division denied the defendant’s motion for summary judgment and reversed the lower court’s order.

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