Sovulj v Procida Realty

Sovulj v Procida Realty 2015 NY Slip Op 04592 Decided on June 2, 2015 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 June 2, 2015
Friedman, J.P., Saxe, Manzanet-Daniels, Feinman, Gische, JJ.
15286 303325/09 83728/10

[*1] Kresimir Sovulj, Plaintiff-Appellant,

v

Procida Realty and Construction Corp. of New York, et al., Defendants, Seventeen Development, LLC, et al., Defendants-Respondents. [And a Third-Party Action]

Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for appellant.

Miranda, Sambursky, Slone, Sklarin, Verveniotis LLP, Mineola (Andrew Giuseppe Vassalle of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered November 25, 2013, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff was injured when a grinder he was using to cut a groove in a floor kicked back on him, cutting his hand and wrist. Plaintiff admitted that he was using the grinder in a manner inconsistent with its recommended use, in that he had placed a saw tooth blade in the grinder and removed the grinder's safety guard to make the blade fit.

The motion court correctly determined that under these circumstances, defendants were not liable for plaintiff's injuries. Plaintiff alleged defendants' liability under Labor Law § 241(6), predicated on a violation of 12 NYCRR § 23-1.12(c). It is well settled that that section of the code does not pertain to the power tool plaintiff was using (see e.g. Conforti v Bovis Lend Lease LMB, Inc., 37 AD3d 235, 236 [1st Dept 2007]).

Plaintiff also alleged defendants' liability under Labor Law § 200, however, the record demonstrates that defendants did not supervise or control plaintiff's work (Suconota v Knickerbocker Props., LLC, 116 AD3d 508, 508 [1st Dept 2014]). Here, the decision to remove [*2]the grinder's safety guard was solely plaintiff's own.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 2, 2015

CLERK