Solis v 32 Sixth Ave. Co. LLC

Solis v 32 Sixth Ave. Co. LLC 2007 NY Slip Op 02479 [38 AD3d 389] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Carlos Solis, Appellant,
v
32 Sixth Avenue Company LLC et al., Respondents.

—[*1] Stuart R. Lang, New York, for appellant.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louis H. Klein of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered January 4, 2006, which, to the extent appealed from as limited by the briefs, granted summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action, unanimously affirmed, with costs.

Defendants contracted Alpine Construction & Development Corp. to perform exterior facade repairs, which included all masonry repairs indicated on the contract documents and/or as directed by owner. Plaintiff, employed by Alpine, was working with a coworker on a scaffold at the 36th floor of the building, using an electric hammer to remove bricks, when he tripped while standing on a foot high "mountain" of debris generated by the work. Defendants submitted sufficient proof to establish their prima facie case, thereby shifting the burden to plaintiff.

Industrial Code (12 NYCRR) § 23-3.3 (b) (5) and (e) do not support plaintiff's Labor Law § 241 (6) claim. The project did not call for the dismantling or razing of a building or structure, in whole or in part, and there were no contemplated changes to the structural integrity of the building. The masonry repair work being performed does not fall within the purview of "demolition" as defined in section 23-1.4 (b) (16) (see Baranello v Rudin Mgt. Co., 13 AD3d 245 [2004], lv denied 5 NY3d 706 [2005]).

Nor is 12 NYCRR 23-1.7 (e) (2) applicable, because the debris covering the scaffold resulted directly from the masonry work plaintiff and his coworker were performing, and thus constituted an integral part of that work (Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2003]).

The conclusory opinion by plaintiff's expert, that the amount of debris on the scaffold exceeded the amount contemplated by the regulation, was speculative and unsupported by industry standards, and thus insufficient to withstand summary judgment (Diaz v New York [*2]Downtown Hosp., 99 NY2d 542 [2002]; see also DeLeon v State of New York, 22 AD3d 786, 788 [2005], lv denied 7 NY3d 701 [2006]). Concur—Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.