Guadagno v ADF Constr. Corp.

Guadagno v ADF Constr. Corp. 2007 NY Slip Op 08670 [45 AD3d 1407] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Louis R. Guadagno, Respondent, v ADF Construction Corp. et al., Appellants, et al., Defendants.

—[*1] Trevett Cristo Salzer & Andolina P.C., Rochester (Valerie L. Barbic of counsel), for defendants-appellants.

Collins & Maxwell, L.L.P., Buffalo (Alan D. Voos of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered August 14, 2006 in a personal injury action. The order, insofar as appealed from, denied that part of the motion of defendants ADF Construction Corp. and Buffalo Bills, Inc. for summary judgment dismissing the Labor Law § 241 (6) cause of action against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action against defendants ADF Construction Corp. and Buffalo Bills, Inc. insofar as it is based on the alleged violation of 12 NYCRR 23-1.10 and dismissing that cause of action against those defendants to that extent and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the blade of the saw he was operating allegedly exploded and cut his hand. Supreme Court properly denied that part of the motion of ADF Construction Corp. and Buffalo Bills, Inc. (collectively, defendants) seeking summary judgment dismissing the Labor Law § 241 (6) cause of action against them insofar as it is based on the alleged violation of 12 NYCRR 23-1.12. Defendants failed to meet their initial burden by establishing as a matter of law that they complied with that regulation (see Haider v Davis, 35 AD3d 363, 364-365 [2006]; see generally Earl v Starwood Ceruzzi Saratoga, LLC, 9 AD3d 879, 880 [2004]). The court erred, however, in denying that part of the motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action against defendants insofar as it is based on the alleged violation of 12 NYCRR 23-1.10. That regulation is inapplicable to the facts of this case (see generally Scally v Regional Indus. Partnership, 9 AD3d 865, 868 [2004]). We therefore modify the order accordingly. Present—Gorski, J.P., Martoche, Smith, Peradotto and Green, JJ.