McKenzie v Cappelli Enters., Inc.
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McKenzie v Cappelli Enters., Inc. 2012 NY Slip Op 32881(U) November 30, 2012 Sup Ct, NY County Docket Number: 100153/2009 Judge: Shlomo S. Hagler Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Shlomo S. Hanler I 17 PART: Justice CECIL McKENZIE, INDEX NO.: Plaintiff, 10015312009 MOTION DATE: - against - MOTION SEQ.NO,: CAPPELLI ENTERPRISES, INC., LC MAIN, LLC and GEORGE A. FULLER COMPANY, INC. 002 MOTION CAL. NO.: Defendants. Motion by defendants for summary judgment dismissing plaintiff's SupplementaldSummons and Amended Complaint. Cross-motion by plaintiff for partial summary judgment on liability. Papers Numbered Defendants' Notice of Motion and Affirmation of Counsel in Support with Exhibits A through L ..... Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment ....... Affidavit of Plaintiffs Counsel in Opposition to Defendants' Motion with Exhibits A through D ....... Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ....... Defendants' Counsel's Affirmation in Reply to Plaintiffs Opposition to Defendants' Motion ........... Plaintiff's Notice of Cross-Motion for Partial Summary Judgment and Affidavits of Counsel in Support with Exhibits A through L . . . . . . . , . . . . I ....................................................... Plaintiff's Memorandum of Law in Support of Cross-Motion for Partial Su Plaintiffs' Cross-Mot Affirmation of Defendants' Counsel in Plaintiffs Counsel's Reply Affirmation ................................................................. Plaintiff's Reply Memorandum of Law Cross-Motion for Pa Transcript of Oral Argument of June 4 .................................. Cross-Motion: 0 No &Yes Number of Cross-Motions: \ 1, 2, 3 4 5,6 7 8 1 Upon the foregoing papers, it is hereby ordered that the defendant's Motion for Summary Judgment dismissing plaintiffs Supplemental Summons and Amended Complaint and plaintiff's Cross-Motion for partial summary judgment on liability is decided as set f ritten Decision and Order. OEC 06 2012 Dated: November 30,2012 New York, New York NEW YORK / COUNTY CLERK'S OFFI%%. Shlomo S. Hagler, J.S.C. Check one: 0 Final Disposition dNon-Final Disposition Motion & Cross-Motion are: 0 Granted 0 Denied MGranted in Part 0 Other Check if Appropriate: 0 SETTLE ORDER 0 SUBMIT ORDER DO NOT POST 0 REFERENCE a c [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 17 Plaintiff, Index No. 100153/09 Motion Sequence: 002 -against- CAPPELLI ENTERPRISES, INC., LC MAIN, LLC, and GEORGE A. FULLER COMPANY, INC., DECISION & ORDER HON. SHLOMO S. HAGLER, J.S.C.: I n this action, plaintiff Cecil McKenzie ( McKenzie or plaintifi ), a roofer, seeks to recover monetary damages for personal injuries he suffered on August 1,2007, when, while standing on a ladder, he was burned by hot asphalt which splashed on him after he set it down on the roof of a building under construction. Defendants Cappelli Enterprises, Inc. ( Cappelli ), LC Main, LLC ( LC Main ), and George A. Fuller Company, Inc. ( GAFC077) move for summary judgment, pursuant to CPLR $ 3212, dimissing the amended complaint. Plaintiff cross-moves, pursuant to CPLR lj 3212, for partial summary judgment on the issue of liability under Labor Law 55 240(1) and 241(6). BACKGROUND 1,C Main is the owner of the premises located at 221 Main Street, White Plains, New York ( subject premises ). LC Main hired GAFCO as the general contractor and project managcr for the construction of two high-rise towers on the Renaissance Square pro-ject at the subject premises. Cappelli wti5 the developer of the pro-ject and parent company of GAFCO. GAFCO retained KJC Waterprooling, Tnc. ( KJC ) to perform the roofing and waterproofing work on$he project. Plaintiff was an employee oi KJC. [* 3] Plaintiff testified at his deposition ( Plaintiffs EBT ) that, on the date of his accident, he was bringing supplies to the workers who were doing waterproofing on the roof(P1aintiff s EBT, Exhibit c t o the Motion, at 19j. Plaintiff was wearing gloves that did not extend over his wrists (id* 24). at PlainlifTwas unsure whether the gloves were his own or whether they were supplied by his employer (id, 23). Plaintiff was transporting hot asphalt from the kettle, which was located on the roof, to at a smaller roof above (id at 28, 30): Plaintiff was using a 15-foot extension ladder (id.at 30). I lainli 1 1 lcsti ficd that the bucket that he was carrying was filled higher than it was normally supposed at to be filled (id. 37). Plaintiff stated that he did not complain to the kettle operator because it was not a big thing to him (id at 39). According to plaintiff, he carried the bucket up the ladder, stayed 01 1 the ladder and set the bucket down normally on the ledge of the roof, and the asphalt splashed on h1.s wrist (id a1 43. 46, 47). Plaintiff then took his gloves off and descended the ladder to find help (zd at 48). Plaintiffstated that the temperature ofthe asphalt was SO0 degrees Fahrenheit, and that tlic temperature should not have been over 350 degrees Fahrenheit (id. 45). Plaintiff was at required to have a skin graft as a result of his accident (id. 64). at Rob Pitiger ( Pitiger ), a project manager for KJC, avers that it used Hydrotech s Monolithic Meinbralie 6 125/6 125-EV (MMG 1251MM6125-EV) to perform rooting work on the project (Pitiger Aft:. 71 4). Pitiger states that MM612YMM6125-EV is not a corrosive product (id., 5 ) . According 7 to Pitiger, the Material Safety Data Sheet for this product indicates that the two major ingredients in MM6 12S/MM6 125-EV are asphalt and polymer rubber (id).Pitiger further states that, in his experience with thesc ingredients and with these products in particular, he has never known them fT to cause any chemical interactions or have any corrosive effect when handled by workers (id., 6). -2- [* 4] In an affidavit, Albert Mueller, P.E. ( Mueller ), a professional chemical engineer, states that the accepted definition of a corrosive substance is a chemical that causes visible destruction of, or irreversible alterations in, living tissue or inorganic materials by chemical action at the site of contact (Mueller Aff., 1 4). Mueller indicates that he reviewed the Material Safety Data Sheet and 1 Technical Data from American Hydrotech, Inc. for its waterproofing product, MM6 125/MM6 125- EV ( i d .1 S ) , fhe Matcrial Safcty Data Sheet states that the products contained within this material 1 are composed of two primary ingredients, asphalt and synthetic rubber filler, and a third minor ingredient, inert clay (id,,7 6). Mueller explains that asphalt is composed of a class of complex hydrocarbons derived primarily from crude petroleum during fractional distillation or other natural sources, and h a t synthetic rubber is also made froin organic compounds derived from petroleum (id., 7 7). Mueller concludes that neither of those substances is corrosive (id.,7 7). In addition, Mueller states that, as an inert ingredient, clay is also not corrosive (id,), DISCUSSION It is well settled that the proponent ofa summaryjudginent motion must make a prima facie showing ofentitlement tojudgment as a matter of law, tendering sufficient evidence to eliminate any matcrinl issues offact from thc case (Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510 [lst Dept 20101, quoting Winegrad v New York Univ.M d . Ctr., 64 NY2d 851, 853 1 1085 I). Once the proponent has made a prima facie showing, the burden shifts to the opposing party to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of f act ( C L I J ~ Wv C ushmun & Wukefield, 74 AD3d 669 [lst Dept 20101, lv dismissed 16 NY3d 766 [201 11 [internal quotation marks and citation omitted]). If thcrc is any doubt as to the existence of -3 - [* 5] a triable issue of fact, summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 119781). Labor Law 4 200/Common-Law Negligence Inirially. this Court notes that plaintiff withdrew his Labor Law ยง 200 and common-law negligence claims at oral argument on the motions (Oral Argument Tr., at 2). Accordingly, this Court need not addrcss the part of defendants motion seeking dismissal of these claims. Cappelli Ikt cndants argue that Cappelli cannot be liable under the Labor Law because it was neither thc owner nor the general contractor, and because GAFCO hired all subcontractors on the site, including KJC. Plaintiff argues that there is an issue of fact as to whether Cappelli may be liable because it is the owner of GAFCO, and because Cappelli was the developer of the project. C appelli is clearly neither an owner nor general contractor, and thus may be liable solely as an agent under the Labor Law An agency relationship for purposes of sectionls] 240 (1) [and 241 (6)] arises only when work is delegated to a third party who obtains the authority to supervise and control the job. Where responsibility for the activity surrounding an injury was not delegated to the third party, there is no agency liability under the statute[s] GAFC O, not Cappelli, retained all subcontractors on the site, including KJC, and that all subcontracts for the work on the site were between GAFCO and the subcontractors (Dannenbaum EH I , at 26-27,33; Hellberg Affirm., Exhibit K). Moreover, there is no evidence that Cappelli was dclega(ed \he authority to supervise and control the work. -4- [* 6] I n addition, plaintiff has failed to demonstrate a basis to pierce Cappelli s corporate veil. Steven Feinstein, a senior project manager employed by GAFCO, testified that Cappelli owns GAFTO (Feinstcin ERT. at 8, 10). Generally, aparty seeking to pierce the corporate veil must show: ( 1 ) complete domination and control of the subsidiary by the parent with respect to the transaction at issue, and (2) that such domination was used to commit a fraud or wrong against the plaintiff that resulted in the plaintiffs injury (see Mutter ofMorris v New York State Dept. of Taxation d Fin., 82 NY2d 135, 141 [I 9931; Do Gnoder Prods., Inc. v American Jewish Theatre, Inc., 66 AD3d 527, 528 1 st Dcpt 2009 I). Factors to be considered in determining whether the [parent company] has abused [that] privilege , . . include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use (East Humpton Union Free School D s . Sandpebble Bldrs., Inc., 66 AD3d 122,127 [2d Dept 20091, u itv r d I (3 N Y 3d 775 [ 20 1 11 lintcriial quotation marks and citations omitted]). Notably, [e]vidence of domination alone does not suffice without an additional showing that it led to inequity, fraud, or imalfeasancc ( T N S Holdings vMKZSec. Corp., 92 NY2d 335,339 [ 19981). Here, plaintiffhas failed to submit any cvidcnce that Cappelli, the parent company, exercised any domination or control over (JAI.C O. its subsidiary Accordingly, Cappelli is entitled to summary judgment dismissing the complaint as against it. Labor Law 6 24011) Labor Law tj 240( 1) provides, in relevant part, that contractors and owners: [ I]n the erection. demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, -5- [* 7] ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. Labor Law $ 240(1) imposes absolute liability on owners, contractors, and their agents for any breach of the statutory duty which proximately causes an injury (Rocovich v Consolidated Edi,ron C o., 78 NY2d 509, 513 1119911; Haimes v New Yo& Tel. Cn., 46 NY2d 132, 136-137 [ 19781). The duty imposed is nondelegable and . , . an owner or contractor who breaches that duty m a y be licld liable in daniagcs regardless of whether it has actually exercised supervision or control over the work (Ross v Curtis-Palmer Hydro-Elec.Co., 8 1 NY2d 494,500 [ 19931). The statute applies to extraordinary elevation risks, and not the usual and ordinary dangers of a construction site (Rodriguez v Murguret Tietz Ctr.,fbrNursing Core, 84 NY2d 84 1,843 [ 19941; see also Toefer \* I,oncr: I\ R R, I o 4 NY3d 399,408 [2005]). To impose liability under Labor Law ~ 0 240(1), the plaintiff must prove: ( 1 ) a violation of the statute (i.e., that the owner or general contractor failed to provide adequate safety devices), and (2) that the violation of the statute was a proximate cause of the injuries sustained (Rfuke,1 NY3d at 289-290). Ilcfc~~dants argue that plaintiffs injury was not the result of the application of gravity: plaintiff did not fall, and an object did not fall or strike him. Rather, plaintiff s forearm was burned when he set down a bucket of hot roofing material, and the material splashed out of the bucket and onto his arm. Defendants further contend that the safety devices enumerated in the statute would not havc prcvented the hot roofing material from splashing out of the bucket. Plaintif fcontends that he wLis iii,jured bccausc he was required to climb a ladder to a section of the roof that was approximately 15 feet highcr than the main area of the roof. According to piaintiff, the 500-degree liquid rubberized asphalt was an object that should have been secured, in that it was inherently dangerous -6- [* 8] if spilled, regardlcss of what height it fell from, and should not have been moved by hand in an uncovered, unsecured bucket. '[Flailing object liability under Labor Law (i 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured (Quattrocchi v F.J. Sciame Constr. c orp 1 1 NY3d 757,758-759 [2008], quoting Outar v City @New York, 5 NY3d 73 1,732 [2005]). Rathcr, liability may be imposed where an object or material fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell (Narducci v Manhasset Buy Asmc., 96 NY2d 259, 268 [2001]). Moreover, whether an object requires securing turns on the foreseeable risks of harm presented by the nature of the work being performed (Buckley v Columbia Ifr(rw7m~rr P w p m t n r y , 44 AD3d 263, 268 llst Dept & 20071, Iv denied 10 NY3d 710 [2008]). In addition, the plaintiff must show that the object fell becazise ofthe absence or inadequacy of a safety device of the kind enumerated in the statute (Narducci, 96 NY2d at 268). In Runner v New York Stock Exch., Inc. (1 3 NY3d 599 [2009]), the plaintiff was injured when he servrci as a counterweight o f a makeshift pulley to move an 800-pound reel of wire down a small set of stairs and was dragged into the pulley mcchanism after the reel rapidly descended the stairs. The Court of Appeals explained that the dispositive inquiry does not depend upon whether the injury resulted from a falling worker or falling object (id. 604). According to the Court, at . d i u governing rule is . that 1,abor Law 9 240( 1 ) was designed to prevent those types of accidents , , i n which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the in.j tired worker frcim hiirrn u ireclly fhwinLqLfkom application qf the fbrce ofgravity lo un object the or per.son (id, quoting Ross, 8 1 NY2d at 50 1). In other words, the relevant inquiry is whether thc harm tlnws directly from the application of the force of gravity to the object (id). The Court -7- [* 9] found that the plaintiff sustained an elevation-related injury, since the harm to the plaintiff was the direct consequence of the application of the force of gravity to the reel (id.). The Court also noted that [tlhe elevation differential involved cannot be viewed as de minimis, particularly given the w i g h t of the oh-jcct and the amount of force it was capable of generating, even over the course of a relatively short descent (id, 605). at Subsequently, in Wilinski v 334 E. 92nd liouu. Dev Fund Uorp. (1 8 NY3d 1 , 9 [201 l]), the Court of Appeals held that a Labor Law 5 240( I ) claim is not necessarily precluded by the fact that the falling object and the plaintiff were on the same level. In that case, the plaintiff was struck by pipes whose base stood at the same level as the plaintiff. Applying Runner, the Court held that plaintiff suffered harm that flowed directly from the application of the force of gravity to the pipes, given that the pipes stood at approximately 10 feet and toppled over at least four feet before striking the plaintiff, and that the height differential was not de iiiiiiiniis considering the amount of force the pipcs w r c ablc to generate over their descent (d. 10). However, the Court ruled that there were at issues of fact as to whether plaintiffs injury was the direct consequence of defendants failure to provide adequate protection against that risk (id.), In Suwnreh v St tate oJ New York (24 AD3d 380 [ 1st Dept 2005]), a case relied upon by plLiititift: tlic claimant was in.jLircd while hauling an open bucket ofhot tar up to a roofwith a rope. On the way up, the bucket became stuck on a ledge. While attempting to free the bucket, the claimant lost his balance, causing him to lean back to prevent himself from falling off the roof. The claimant burncd his feet when he lost control of the bucket. The First Department held that plaintiff \ accident was gravity-related, explaining that: -8- [* 10] Here, claimant was both working at an elevated height and was involved in hoisting dangerous materials from one level to another. In attempting to free the bucket from the building ledge, claimant lost his balance and almost fell from the roof. In addition, while attempting to free the bucket, it tipped over and spilled hot tar on his foot. In both instances, the risk of injury was the direct result of the application of gravity to either claimant himself or the materials being hoisted. Had claimant been supplied with a proper hoist to lift the tar, and a proper brace to prevent him from losing his balance on the elevated roof, the accident may not have occurred. That claimant did not fall completely off the roof, or that the tar did not fall Erom a position high above claimant s head, but rather spilled when it was being dislodged while being hoisted, does not negate the fact that claimant s injuries were the direct result of a gravity-related risk. (id at 381). Defendants rely on Moore v ElmwoodFranklin School (249 AD2d 923 [4th Dept 19981, lv a enied 92 NY2d 1001 [ 19981). In Moore, the plaintiff was straddling the peak of a roof when his foot slipped and he slid several feet down the roof, sustaining severe burns when the hot tar that he had pourcd spillcd on him. Although the trial court granted the worker s motion for summary judgment 011 liability, the appellate court reversed and held that plaintiffs slide several feet down the roof was not the type of hazard contemplated by Labor Law 8 240(1) (id,).Furthermore, in Slriegcl v l l i l l ~ ~ i * tlkeighls Development C, orp. 266 AD2d 809,8 10 (4th Dept 1999), where the court ~Ls/ sustained the granting of plaintiffs motion for partial summary judgment under 6 240( 1) when the plaintiff was iiijured when he slid 25 to 30 feet down a roof and was saved from falling off the roof when nails on the roof snagged his pants, the appellate court clarified that Moore was distinguishable bccaiisc h c plaintifl~sinjury there was caused by the contact with the hot tar and not the fall or the e 1evat i on hazard . -9- [* 11] In this case, plaintiffs accident was not the result of the extraordinary elevation risks contcniplakd by the statute, but rather was caused by the usual and ordinary dangers of a construction site (Rudrriguez, 84 NY2d at 843). Plaintiff testified that after he set the bucket down on the roof, thc hot asphalt splashed on his wrist (Plaintiff EBT, at 46, 47). After the asphalt at splashed on his wrist, plaintiff descended the ladder and went to get help (id. 48). Thus,plaintiff s iniuries did not directly flow from the application of the force of gravity to an object (see Runner, 13 NY3d at 604). Unlike the claimant in Suwareh, plaintiff did not sustain his injuries in an effort to avoid falling off the ladder, and plaintiffs bucket did not tip over while being hoisted or secured. Mo reover, it cannot be said that the hot asphalt spilled on plaintiff because qfthe absence or inadequacy of a safety device of the kind enumerated in the statute (Narducci, 96 NY2d at 268). Accordingly, plaintiff s Labor Law $ 240( 1) claim is dismissed. Labor Law 3 241(6) Labor Law 5 24 l(6) provides, in pertinent part, as follows: All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in conricction therewith, shall comply with the following requirements: *** 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such placcs. The commissioner may make rules to carry into effect the provisions ofthis subdivision, and the owners and contractors and thcjr agents for such work . . . shall comply therewith. -10- [* 12] I .dx)r 1,aw i;; 24 l(6) places a nondelegable duty on owners, general contractors, and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross, 81 NY2d at 50 1-502). 10prevail under Labor Law 5 241(6), the plaintiff must demonstrate a violation of a rule or regulation of the Industrial Code which gives a specifk, positive command, and which was a prouimate cause of the accident (Rizzuto v L A . Wmger Contr. Co., 91 NY2d 343, 349 [1998] [intcnial quotation marks and citations omitted]; Ross, 8 1 NY2d at 503-505). Plaintiffs verified bill of particulars alleges that defendants violated the following Industrial Code provisions: 12 NYCRR23-1.5(a); 12NYCRR23-1.5(b); 12NYCRR23-1.5(~)( 12NYCRR 1); 23-1.5(~)(2); NyCRR23-1.5(~)(3); 12 12NYCRR23-1.7(hj; 12 NYcRR23-1.8(~)(4);12NYCRR 23- 1.24(d)(1); and 12 NYCRR 23-1.24(d)(2) (Verified Bill of Particulars, I[ 15). Defendants move for summary judgment dismissing plaintiffs Labor Law ij 241(6j claim, arguing that the cited Industrial Code regulations are either inapplicable or were not violated. With respect to sections 23- 1.7(h) and 23-1.8(~)(4), defendants maintain that the hot asphalt was not a L corrosivesubstance, i-clyiiig on the allidavits from Pitiger and Mueller, which claim that a corrosive substance is a chemical that causes visible destruction of, or irreversible alterations in, living tissue or inorganic niaterials by chemical action at the site of contact (Mueller Aff., 7 4). Plaintiff moves for summary judgment in his favor based on violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23-1.8(~)(4). I laintil l also opposesdismiss~11 ofhisclaim based onviolations ofsections23-1.5(n) and23-1.24(dj. 12 NYCRR 23-1.7 and 12 NYCKR 23-1.8 12 NYCRR 23-1.7, entitled Protection from general hazards, states in subsection (hj that Corrosive substances. All corrosive substances and chemicals shall be so stored and used as not -1 1- [* 13] to endanger any person. Protective equipment for the use of such corrosive substances and chemicals shall be provided by the employer (12 NYCRR 23-1.7[h]). 12 NYCRR 23-1.8(~)(4) provides that Protection from corrosive substances. Every employee required to use or handle corrosive substances or chemicals shall be provided with and shall be required to wear appropriate protective apparel as well as approved eye protection (12 NYCRR 23-1.8[~][4]). The Industrial Code does not define the term corrosive (12 NYCRR 23-1.4). The interpretation of [an Industrial Code pravision] presents a question of law, but the meaning of specialized terms in such a regulation is a question on which a court must sometimes hear evidence beloit mtllting its determination (Morris v Pavarini Constv., 9 NY3d 47, 51 [2007]; see ulso Messina v City oJ New York, 300 AD2d 12 1, 123 [ 1st Dept 20021). In C rramer v A m s t e r h m High School (241 AD2d 589,590 [3d Dept 19971) ( Creamer l ), the plaintiff, a roofer, was burned when he fell into a bucket of heated asphalt while installing Icmporary rooling on an asbestos abatement project. The plaintiff commenced an action against the general contractor and owner for negligence and violations of Labor Law $8 200,240, and 241 (id). Thc plaintiffs employer, a subcontractor, moved for summary judgment dismissing the complaint (id.). opposition, plaintiff submitted an expert s affidavit asserting that the heated asphalt being In used was a corrosive substance as defined in 12 NYCRR 23-1.89(~)(4) which required appropriate protective equipment. Thc trial court did not grant either party summary judgment, despite plaintiffs expert s affidavit but instead submitted the issue of whether the heated asphalt was a corrosive substance as defined in 12 NYCRR 23- 1.89(c)(4) and which required appropriate protective equipment to the J u r y as the trier.of l act. -12- [* 14] On subsequent appeal after a jury verdict in plaintiffs favor (Creumer v Amsterdam High School, 277 AD2d 647, 650 [3d Dept 20003) ( Creamer If ),the Appellate Division affirmed the trial court s decision to submit the issue ofwhether the heated asphalt was a corrosive substance pursuanl to 13 NYC KK 23- 1.8 (c)(4) to the jury and for the expert to testify at the trial. Defendants in the instant case have submitted an affidavit from a professional chemical engineer, Albert Mueller, who states, within a high degree of engineering certainty, that the waterproohg product which caused plaintiffs burn was not a corrosive substance (Mueller Aff., 1 4) Muellel- bases his conclusion on the Material Safety Data Sheet and Technical Data for the product, which indicate that none of the product s ingredients is corrosive, and the OSHA definition of a corrosive substance in 29 CFR 19 10.1200, Appendix A (id, 6, 9). 77 Plaintiff alleges an issue of fact as to whether there were violations of 12 NYCRR 23- 1.7(h) and 12 NYC RR23- I 8(c)(4). Plaintiff maintains, contrary to Mueller s opinion, that the hot asphalt caused visible destruction and irreversible alterations to the living tissue of his arm. In light of. C rrarner 1 and //, the Court finds that the issue of whether the hot asphalt constitutes a corrosive substance is one best left for the .jury. The Court further notes that the Pattern Jury Instructions, interpreting C renrner 1, state that section 23- I .8(c)(4) is sufficiently specific and applies to a plaintiff injured while handling heated asphalt (NY PJI 2:216A). Accordingly, the court denies both plaintiffs and dekndants motions seeking summary judgment with respect to Labor Law $ 241 (6) as to the alleged violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23- I .8(~)(4). -13- [* 15] 12 NYCRR 23-1.5 and 12 NYCRR 23-1.24 Contrary to plaintiffs contention, section 23-1.5 is insufficiently specific to serve as a predicate for liability under Labor Law 241 (6) (see Cordeiro v TS Midtown Holdings, LLC, 87 AD3d 904,906 [lst Dept 201 11; Curty v Port Auth. 0 f N . K d; N J , , 32 AD3d 732, 733 [lst Dept 20061, lv denied 8 NY3d 814 [2007]; Muldonado v Townsend Ave. Enters., Ltd, Partnership, 294 AD2d 207, 208 [lst Dept 20021). A 12 NYCRR 23-1.24(d) regulates Hot roofing material transporters, also known as hot luggers. Although carrying hot tar in an open bucket may be an inherently dangerous activity, it is not prohibited by 12 NYCRR23-1.24(d) (Stusiert.1wskivConbow Corp.,258 AD2d914,915 [4th Dept IC~CN], uiso C m/illov Sturrett C ity, 4 AD3d 320, 322 [2d Dept 20041). ~ C C Theref ore,defkndants are entitled to dismissal ofplaintiff s section 241 (6) claim to the extent it is predicated on these two Industrial Code sections. CONCLUSION Accordingly, it is ORDERED that the motion (sequence number 002) of defendants Cappelli Enterprises, Inc., LC Main, LLC, and George A. Fuller Company, Inc. for summary judgment is granted only to the extent of: (I ) scvcring and dismissing the complaint as against defendant Cappelli Enterprises, Xnc. only, and tlic Clerk of the Court is directed to enter judgment accordingly; -14- [* 16] (2) dismissing plaintiffs Labor Law 5 240 (1) claim and plaintiffs Labor Law 5 241 (6) claim based on violations of 12 NYCRR 23-1.5 and 12 NYCRR 23-1,24, and is otherwise denied; and it is further ORDERED that plaintiffs claims based on violations of 12 NYCRR 23-1.7(h) and 12 NYCRR 23-1.8(~)(4) remain, and it is further ORDERED that the cross-motion of plaintiff for partial summary judgment is denied. The foregoing constitutes the decision and Order of this Court. Courtesy copies of this Decision and Order have been sent to counsel for the parties ENTER: Dated: November 30,2012 New York, New York Hon. Shlomo S. M l e r , J.S.C. NE& YORK COUNTY CLERKS -15-
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