Hernandez v Seadyck Realty Co., LLC

Hernandez v Seadyck Realty Co., LLC 2016 NY Slip Op 02172 Decided on March 24, 2016 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 March 24, 2016
Mazzarelli, J.P., Manzanet-Daniels, Kapnick, Webber, JJ.
618 157770/12

[*1]Angel Hernandez, Plaintiff-Respondent,

v

Seadyck Realty Co., LLC, Defendant-Appellant, John Doe, Inc., Defendant. [And A Third-Party Action]

Rafter and Associates PLLC, New York (Howard K. Fishman of counsel), for appellant.

Ginarte, O'Dwyer, Gonzalez, New York (Richard M. Winograd of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about August 3, 2015, which, insofar as appealed from, denied that branch of the motion of defendant Seadyck Realty Co., LLC (Seadyck) for summary judgment dismissing the Labor Law § 241(6) claim predicated upon a violation of 12 NYCRR 23-1.12(c), unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when a grinder he was using to cut a hole in a wooden bathroom vanity kicked back on him, cutting his hand and wrist. Plaintiff testified that when his employer gave him the grinder to complete his assigned task, it did not have a grinding disk or a guard attached, but instead, had a saw blade with large teeth for cutting wood. We are constrained by recent precedent to find that it is irrelevant whether the modified grinder was functionally equivalent to a power-driven saw in determining whether it falls within 12 NYCRR 23-1.12(c), since the plain language of that section indicates that it is applicable to "[e]very portable, power-driven, hand-operated saw," not grinders (see Sovulj v Procida Realty and Constr. Corp. of N.Y., 129 AD3d 414 [1st Dept 2015] We note, however, that, according to the briefs submitted in Conforti v Bovis Lend Lease LMB, Inc., 37 AD3d 235 [1st Dept 2007]), the case on which Sovulj relies, the grinder at issue in Conforti was not altered to be the functional equivalent of a power saw.

Plaintiff's allegation, made for the first time on appeal, that Seadyck violated 12 NYCRR 23-1.5(c)(3), is not properly before this Court (see e.g. Miller v Savarino Constr. Corp., 103 AD3d 1137 [4th Dept 2013]; Cody v Garman, 266 AD2d 850, 851 [4th Dept 1999]). However, [*2]to the extent plaintiff failed to seek leave of the court to amend his bill of particulars to allege such a violation, he should be granted an opportunity to do so, as there is no prejudice to defendant (see Sahdala v New York City Health & Hosps. Corp., 251 AD2d 70 [1st Dept 1998]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2016

CLERK