Bajor v 75 E. End Owners Inc.

Bajor v 75 E. End Owners Inc. 2011 NY Slip Op 07723 Decided on November 3, 2011 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 November 3, 2011
Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.
104873/08 5927 590135/09

[*1]5926-Stanislaw Bajor, Plaintiff-Respondent,

v

75 East End Owners Inc., et al., Defendants-Appellants-Respondents, Renotal Construction Inc., Defendant-Respondent-Appellant, Church Management Corp., Defendant. [And a Third Party Action]




Mischel & Horn, P.C., New York (Scott T. Horn of counsel),
for appellants-respondents.
Morgan Melhuish Abrutyn, New York (Erin A. O'Leary of
counsel), for respondent-appellant.
The Perecman Firm, P.L.L.C., New York (David H. Perecman
of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered December 15, 2010, which granted plaintiff's motion for partial summary judgment as against defendants 75 East End Owners Inc. (75 East) and Renotal Construction Inc. on the issue of liability under Labor Law § 241(6), and denied that portion of 75 East's cross motion for summary judgment seeking common-law indemnification against Renotal, unanimously affirmed, without costs.

Plaintiff was injured while working on a renovation project in an apartment located in a building owned by defendant 75 East when he severed his thumb, middle and index fingers while using a table saw that lacked safety devices. Defendant Renotal was the general contractor for the project. Plaintiff established his entitlement to summary judgment as against 75 East and Renotal on his claim pursuant to Labor Law § 241(6) by demonstrating that defendants violated Industrial Code § 23-1.12(c)(2), which requires power-driven saws, other than portable saws, to be equipped with a safety guard. Contrary to defendants' argument, the mere fact that the table saw utilized by plaintiff could be moved from room to room does not render it portable such that this section is not applicable. Further, since there is evidence that plaintiff, who was cutting a six to seven foot length of wood when he was injured, was engaged in ripping, i.e., cutting with the grain (see Gould v Rexon, Indus. Corp., 2006 WL 2301852, *3 n 1, 2006 US Dist LEXIS 73949, *9 n 1 [ND NY 2006]), section 23-1.12(c)(3), which requires that every table saw used for ripping "be provided with a spreader securely fastened in position and with an effective device to prevent material kickback," was also violated. [*2]

Although comparative negligence constitutes a valid defense to a Labor Law § 241(6) claim (see Misicki v Caradonna, 12 NY3d 511, 515 [2009]), defendants have not established any comparative negligence.

The motion court properly denied 75 East's motion for common-law indemnification against Renotal, as the evidence indicated that Renotal had general supervisory and coordinating authority at the worksite, but did not supervise or control the work performed (see Hughes v Tishman Constr. Corp., 40 AD3d 305, 306 [2007]; Burgalassi v Mandell Mech. Corp., 38 AD3d 363, 364 [2007]).

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

ENTERED: NOVEMBER 3, 2011

CLERK