Croussett v Chen

Croussett v Chen 2013 NY Slip Op 00049 Decided on January 8, 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 January 8, 2013
Tom, J.P., Andrias, Freedman, Román, Gische, JJ.
8967 104520/08

[*1]Guillermo Croussett, Plaintiff-Appellant, ——

v

Minalie Chen, et al., Defendants-Respondents.




Trolman, Glaser & Lichtman, P.C., New York (Michael T.
Altman of counsel), for appellant.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler,
P.C., Syosset (Anton Piotroski of counsel), for Minalie Chen,
Jackson Hsieh and Vella Interiors, Inc., respondents.
Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of
counsel), for 115 Central Park West Corporation and Akam
Associates, Inc., respondents.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered September 20, 2011, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Vella Interiors, Inc., and the cross motion of defendants 115 Central Park West Corporation and Akam Associates, Inc., for summary judgment dismissing the Labor Law § 241(6) claims as against them, unanimously affirmed, without costs.

Plaintiff, a painter employed by a subcontractor on a home renovation project, was injured when he fell off of the ladder on which he was working. With one exception (see Industrial Code [12 NYCRR] § 23-1.21[e][2]), plaintiff relied upon sufficiently specific Industrial Code regulations to form the predicate for his Labor Law § 241(6) claims (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). However, the specific provisions upon which he relied, which relate to ladder maintenance and slippery conditions, are inapplicable to the facts of this case (see 12 NYCRR 23-1.7[d], 23-1.21[b][3][ii], [iv], [4][ii]; [e][3]). Indeed, plaintiff testified that he properly opened and set up the eight- to nine-foot ladder, that the aluminum side supports were in working order, and that the ladder had four rubber footings. There is no evidence of a slippery floor or that the masonite, which covered the ceramic floor, was a foreign substance that caused a slippery footing.

Plaintiff failed to preserve his claim that defendants violated Industrial Code (12 NYCRR) §§ 23-1.21(b)(1) and
23-1.7(e)(2) (see McMahon v Durst, 224 AD2d 324, 324 [1st Dept 1996]), and we decline to review it. Were we to review the claim, we would reject it, as both sections are inapplicable. Plaintiff testified that he cleared away the electrical coils, boxes and other materials from the work area before beginning his work (see 12 NYCRR 23-1.7[e][2]), and there is no evidence that [*2]
the ladder was incapable of supporting four times the maximum load intended to be supported thereon (see 12 NYCRR 23-1.7 [b] [1]).

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

ENTERED: JANUARY 8, 2013

CLERK