Charles v Summit Glory LLC

Charles v Summit Glory LLC 2020 NY Slip Op 01270 Decided on February 20, 2020 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 February 20, 2020
Renwick, J.P., Mazzarelli, Gesmer, Kern, JJ.
11096 161044/17

[*1] Joseph Charles, Plaintiff-Appellant,

v

Summit Glory LLC, et al., Defendants-Respondents.

Kazmierczuk & McGrath, Forest Hills (Joseph Kazmierczuk of counsel), for appellant.

Cullen & Dykman LLP, New York (Wayne M. Cox of counsel), for respondents.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered January 24, 2019, which, insofar as appealed from, granted defendants' motion to dismiss the Labor Law § 241(6) cause of action predicated upon Industrial Code (12 NYCRR) § 23-1.10(a), unanimously affirmed, without costs.

Plaintiff was injured when his right forearm was struck by a metal shard that flew from the "mushroomed" head of a "drift pin" that a coworker was hammering with a sledgehammer. A drift pin is a tapered metal hand tool that is hammered into the holes of steel beams to align them, and once the holes are aligned, the drift pin is removed and a bolt is put through the holes to secure the beams. According to defendants' proof, the subject drift pin was about one foot long, one inch in diameter and "round."

Plaintiff claims that defendants violated 12 NYCRR 23-1.l0(a), which provides that "[e]dged tools shall be kept sharp and shall be maintained free from burrs and mushroomed heads." We have previously found the regulation inapplicable to tools that have "flat and/or round edges" (Pol v City of New York, 126 AD3d 526, 526 [1st Dept 2015], lv denied 25 NY3d 912 [2015]), and since plaintiff has not submitted any proof showing that the drift pin was a tool with a sharp edge, the claim was properly dismissed.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 20, 2020

CLERK