FOWLER v. CCS QUEENS CORPORATION, N.Y. App. Div., Judgment, Law, casemine.com

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Attorney(S)

Connelly Connelly, P.C. (Paul F. McAloon, P.C., New York, N.Y., of counsel), for appellant. Kral, Clerkin, Redmond, Ryan, Perry Girvan, Mineola, N Y (Elizabeth Gelfand Kastner of counsel), for defendants third-party plaintiffs-respondents. Scibilia, Polacco Aledort, LLP, Hempstead, N.Y. (Mark R. Aledort and William B. McTiernan of counsel), for defendant third-party defendant second third-party plaintiff-respondent. James P. O'Connor, New York, N.Y. and Stanziale Carpentier, LLP, Mineola, N.Y. (Henry Stanziale of counsel), for first and second third-party defendant-respondent (one brief filed).

Judges

Robert J. Miller

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ANDREW FOWLER, APPELLANT, v. CCS QUEENS CORPORATION, ET AL., DEFENDANTS THIRD-PARTY PLAINTIFFS-RESPONDENTS, RA; CONSTRUCTION CORP., DEFENDANT THIRD-PARTY DEFENDANT SECOND THIRD-PARTY PLAINTIFF-RESPONDENT; BDT CONTRACTING CORP., FIRST AND SECOND THIRD-PARTY DEFENDANT-RESPONDENT.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff was employed as a truck driver by BDT Contracting Corporation (hereinafter BDT). The plaintiff was injured while attempting to bend a rod that was hanging over the side of a tractor trailer, as instructed by BDT. As the plaintiff pushed the rod, it sprung back and hit him on the right side of his head. CCS Queens Corporation (hereinafter CCS) was the general contractor at the construction site and 61-01 Realty Corporation was the owner of the construction site. CCS contracted R A; Construction Corporation to perform excavation work, who in turn subcontracted BDT, to assist with the excavation work.

Contrary to the plaintiff's contention, the Supreme Court properly granted those branches of the respondents' respective motions which were for summary judgment dismissing his Labor Law § 241(6) cause of action. The Industrial Code provisions cited by the plaintiff are either inapplicable to the case at bar (see, 12 NYCRR 23-1.7[e][2]; 12 NYCRR 23-1.8[c][1]; McCole v. City of New York, 221 A.D.2d 605) or lack the specificity required to qualify as a predicate for liability under Labor Law § 241(6) (see, 12 NYCRR 23-2.1 [b]; Lynch v. Abax, Inc., 268 A.D.2d 366; Mendoza v. Marche Libre Assocs., 256 A.D.2d 133).

The instant case is distinguishable from our decision in Herman v. St. John's Episcopal Hospital ( 242 A.D.2d 316), since in that case only the provision of 12 NYCRR 23-2.1(a) was at issue, where as here the plaintiff relies on 12 NYCRR 23-2.1(b).

FOWLER v. CCS QUEENS CORPORATION

ANDREW FOWLER, APPELLANT, v. CCS QUEENS CORPORATION, ET AL., DEFENDANTS THIRD-PARTY PLAINTIFFS-RESPONDENTS, RA; CONSTRUCTION CORP., DEFENDANT THIRD-PARTY DEFENDANT SECOND THIRD-PARTY PLAINTIFF-RESPONDENT; BDT CONTRACTING CORP., FIRST AND SECOND THIRD-PARTY DEFENDANT-RESPONDENT.

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