CHUCHUCA v. REDUX REALTY

Plaintiff alleges that he was injured on defendants' premises when a piece of wire that he was cutting struck him in the eye, and that defendants failed to provide him with safety goggles in violation of Labor Law § 241(6) and Industrial Code (12 NYCRR) 23-1.8(a). However, the commercial dishwasher that plaintiff was repairing or "rebuilding" when injured was neither a "structure" (compare Smith v. Shell Oil Co., 85 N.Y.2d 1000 [free-standing gas station sign]; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555 [railroad car]; Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942 [telephone pole]), nor a part of a structure (see Malczewski v. Cannon Design, 125 A.D.2d 941 [computer equipment]; compare Joblon v. Solow, 91 N.Y.2d 457 [concrete block wall]; Caraciolo v. 800 Second Ave. Condominium, 294 A.D.2d 200 [water tank]), within the meaning of 12 NYCRR 23-1.4(b)(13). Therefore, even if the work that plaintiff was doing could be considered "construction work" within the meaning of section 241(6) (but see Nagel v. D R Realty Corp., 99 N.Y.2d 98, 102-103), he has no claim under that statute (see id.). While plaintiff's general negligence claim is encompassed within Labor Law § 200, the record demonstrates neither supervision nor control by defendants as would subject them to any duty to provide a safe construction site (see Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.