Summary
In Singh v. 106-108 Bayard St., 750 N.Y.S.2d 496 (N.Y. App. Div. 2002), the Appellate Division, First Department held that this provision was "sufficiently concrete and specific in its mandate to support plaintiff's Labor Law § 241(6) claim."
Summary of this case from Agate v. City of New YorkOpinion
2463
December 5, 2002.
Order, Supreme Court, New York County (Jane Solomon, J.), entered January 7, 2000, which, inter alia, denied defendant's cross motion insofar as it sought summary judgment dismissing plaintiff's Labor Law § 241(6) and § 200 claims, unanimously affirmed, without costs.
Bryce Moses, for plaintiffs-respondents.
Jennifer R. Lindsey, for defendant/third-party plaintiff-appellant.
WILLIAMS, P.J., ELLERIN, RUBIN, MARLOW, GONZALEZ, JJ.
Contrary to defendant's contention, the "safety hat" provision of the Industrial Code (12 NYCRR § 23-1.8[c][1]) is sufficiently concrete and specific in its mandate to support plaintiff's Labor Law § 241(6) claim (see generally Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505; and see McByrne v. Ambassador Constr. Co., 290 A.D.2d 243). Defendant's argument that plaintiff, at the time of his accident, was not engaged in an activity covered by Labor Law § 241(6) (see 12 NYCRR § 23-1.4[b][13]; and see Joblon v. Solow, 91 N.Y.2d 457, 466), is concededly made for the first time on appeal, and we decline to reach it (see Reliance Natl. Ins. Co. v. Sapiens Intl. Corp., 243 A.D.2d 406). Were we to reach it, we would find it meritless (see Noriega v. State St. Bank, 271 A.D.2d 313, 314).
In light of Leong's testimony, there is a question of fact as to the owner's supervisory control over the work in question. Accordingly, summary judgment was appropriately denied with respect to Labor Law § 200.
We have considered defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.