COLEMAN v. ISG LACKAWANNA SERVS., LLC

Memorandum:

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Clyde Coleman (plaintiff) when he was operating a diesel-powered water blasting unit (unit) at defendants' facility. We note at the outset that the only issues not abandoned by plaintiffs' appeal concern the Labor Law § 241 (6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-1.10 (b) and 23-2.1 (b) ( see Ciesinski v Town of Aurora, 202 AD2d 984).

We reject the contention of plaintiffs that Supreme Court erred in granting that part of defendants' motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-1.10 (b). Defendants met their burden of establishing that 12 NYCRR 23-1.10 (b) is not applicable to the facts of this case because the unit is not an electrical or pneumatic hand tool ( see Szafranski v Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113). We agree with plaintiffs, however, that the court erred in dismissing the Labor Law § 241 (6) cause of action insofar as it is premised upon the alleged violation of 12 NYCRR 23-2.1 (b), and we therefore modify the order accordingly. Section 241 (6) applies to "[a]ll areas in which . . . demolition work is being performed" and, pursuant to the Industrial Code, demolition work means "work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment" ( 12 NYCRR 23-1.4 [b] [16]; see Wade v Atlantic Cooling Tower Servs., Inc., 56 AD3d 547, 549; Pino v Robert Martin Co., 22 AD3d 549, 551-552; Lozo v Crown Zellerbach Corp., 142 AD2d 949). Defendants failed to establish as a matter of law that plaintiffs work was not "incidental to or associated with the . . . dismantling" of the skin mill at their facility ( see Ruiz v 8600 Roll Rd., 190 AD2d 1030, 1031; cf. Rosen v General Elec. Co., 204 AD2d 978; Meehan v Mobil Oil Corp., 184 AD2d 1021, lv dismissed 80 NY2d 925, lv denied 85 NY2d 804). Further, contrary to defendants' contention, 12 NYCRR 23-2.1 (b) is sufficiently specific to support the Labor Law § 241 (6) cause of action ( see Scally v Regional Indus. Partnership, 9 AD3d 865, 868; Kvandal v Westminster Presbyt. Socy. of Buffalo, 254 AD2d 818), and defendants failed to establish that the regulation is not applicable to the facts of this case ( cf. Scally, 9 AD3d at 868).