Tyler Heron v J.S. Alberici Construction Co.

Heron v J.S. Alberici Constr. Co. 2003 NY Slip Op 18724 [1 AD3d 1031] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Tyler Heron, Respondent,
v
J.S. Alberici Construction Co., Inc., et al., Defendants, and Louis P. Ciminelli Construction Co., Inc., Appellant. Alp Steel Corp., Fourth-Party Plaintiff-Respondent, v Seneca Steel Erectors, Inc., Fourth-Party Defendant-Appellant.

— Appeals from an order of Supreme Court, Erie County (Cosgrove, J.), entered October 30, 2002, which, inter alia, denied that part of the cross motion of fourth-party defendant for summary judgment seeking dismissal of plaintiff's claim pursuant to Labor Law § 241 (6).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the cross motion of fourth-party defendant seeking dismissal of plaintiff's claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2 and as modified the order is affirmed without costs.

Memorandum: We conclude that Supreme Court erred in denying that part of the cross motion of fourth-party defendant seeking dismissal of plaintiff's claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2. Those regulations apply to the use of equipment not used at the time of plaintiff's injury (see Jacome v State of New York, 266 AD2d 345, 347 [1999]). We therefore modify the order accordingly. We otherwise affirm the order for the reasons stated in the decision at Supreme Court (Cosgrove, J.). Present—Wisner, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.