Wanderlei Gasques v. State of New York
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 156
Wanderlei Gasques, et al.
Appellants,
v.
State of New York,
Respondent.
Jay L. T. Breakstone, for appellants.
Michael J. Lenoff, for respondent.
MEMORANDUM:
The order of the Appellate Division, insofar as
appealed from, should be affirmed, with costs, and the certified
question answered in the affirmative.
Claimant Wanderlei Gasques was injured while repainting
the inside of a leg of the Kosciuszko Bridge, using a "spider
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No. 156
His hand was injured when it became caught between
the scaffold and the leg of the bridge, while the scaffold was
ascending.
With respect to claimants' Labor Law § 240 (1) cause of
action, the parties agree that Gasques's hand was crushed because
the scaffold continued to move, under the impetus of one of its
motors, while his hand was trapped between an external motor
control on the scaffold and the steel of the bridge.
This injury
was not the direct consequence of the application of the force of
gravity to an object or person (see Runner v New York Stock
Exch., Inc., 13 NY3d 599, 604 [2009]; Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]).
Therefore
claimants' Labor Law § 240 (1) claim was properly dismissed.
Claimants' Labor Law § 241 (6) cause of action was also
properly dismissed because it is based solely on 12 NYCRR 23-1.5
(c) (1), which requires that machinery or equipment used by
employees be "in good repair and in safe working condition."
It
is well-established that, in a Labor Law § 241 (6) claim, the
rule or regulation alleged to have been breached must be a
"specific, positive command" (Rizzuto v L.A. Wenger Contr. Co.,
91 NY2d 343, 349 [1998], quoting Ross, 81 NY2d at 504).
12 NYCRR
23-1.5 (c) (1) does not set forth a specific standard of conduct
and therefore cannot serve as a predicate for a Labor Law § 241
(6) claim.
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No. 156
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Order, insofar as appealed from, affirmed, with costs, and
certified question answered in the affirmative, in a memorandum.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith,
Pigott and Jones concur.
Decided October 21, 2010
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