Daniel Baranello v Rudin Management Company

Baranello v Rudin Mgt. Co. 2004 NY Slip Op 09422 [13 AD3d 245] December 21, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Daniel Baranello, Jr., Respondent,
v
Rudin Management Company, Appellant.

—[*1]

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered November 7, 2003, which, to the extent appealed from, denied defendant's motion to dismiss plaintiff's claim under Labor Law § 241 (6) based on Industrial Code (12 NYCRR) § 23-3.3, unanimously reversed, on the law, without costs, the motion granted, and the claim dismissed.

There is no triable issue of fact as to the nature of the work being conducted at the site; it did not constitute demolition work as required for the application of the relied-upon section of the Industrial Code. "Demolition work" is defined in the Industrial Code (see 12 NYCRR 23-1.4 [b] [16]) as "[t]he work incidental to or associated with the total or partial dismantling or razing of a building or other structure including the removing or dismantling of machinery or other equipment." As this Court held in Quinlan v City of New York (293 AD2d 262, 263 [2002]), the removal of a portion of a wall does not constitute demolition work as defined in 12 NYCRR 23-1.4 (b) (16) (cf. Zuniga v Stam Realty, 169 Misc 2d 1004 [1996], affd 245 AD2d 561 [1997]), lv denied 91 NY2d 813 [1998]). Concur—Tom, J.P., Saxe, Lerner and Sweeny, JJ.