Keneally v 400 Fifth Realty LLC

Keneally v 400 Fifth Realty LLC 2013 NY Slip Op 06993 Decided on October 29, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 29, 2013
Friedman, J.P., Sweeny, Acosta, Manzanet-Daniels, JJ.
10910 112031/09

[*1]David R. Keneally, Plaintiff-Respondent,

v

400 Fifth Realty LLC, et al., Defendants-Appellants.




Malapero & Prisco LLP, New York (Frank J. Lombardo of
counsel), for appellants.
Erlanger Law Firm PLLC, New York (Robert K. Erlanger of
counsel), for respondent.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 10, 2012, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing plaintiff's claim under Labor Law § 241(6), unanimously affirmed, without costs.

Industrial Code (12 NYCRR) 23-1.12(c)(1) is applicable because plaintiff was using a "power-driven saw" at the time of his accident within the meaning of that provision. Nonetheless, triable issues of fact exist as to whether the regulation was violated because the saw provided to plaintiff had a defective or inadequate "movable self-adjusting guard below the base plate," which failed to "completely cover the saw blade to the depth of the teeth when such saw blade [was] removed from the cut" (12 NYCRR 23-1.12[c][1]; see Ortega v Everest Realty LLC, 84 AD3d 542, 544 [1st Dept 2011]). Plaintiff's co-worker testified that he used the saw shortly before plaintiff's accident and observed that the movable self-adjusting guard had been "sticking" and, therefore, it did not completely cover the saw blade when removed from the cut.

The court properly considered plaintiff's expert's affidavit on the question of whether a certain condition or omission was in violation of a regulation and the meaning of the terms used within the relevant Industrial Code provision (see Boruch v Morawiec, 51 AD3d 429 [1st Dept 2008], citing Franco v Jay Cee of N.Y. Corp., 36 AD3d 445, 448 [1st Dept 2007]).

The court did not abuse its discretion in declining to consider the affidavit of defendants' expert, which was submitted for the first time in reply. The affidavit was not addressed to the arguments made in plaintiff's opposition, and instead sought
to assert new grounds for the motion (see AMBAC Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [1st Dept 2012], citing Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]).

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

ENTERED: OCTOBER 29, 2013 [*2]

CLERK