Wednesday, December 30, 2015

Second Department Finds Industrial Code § 23-1.5[c][3] to be Sufficiently Specific to Support A Labor Law § 241(6) Claim

In Perez v. 286 Scholes St. Corp., the plaintiff commenced an action against the defendant pursuant to Labor Law § 241(6) as predicated on an alleged violation of Industrial Code § 23-1.5[c][3], which provides that "[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged." The plaintiff was operating a grinder that lacked a safety guard.  A piece of sheet metal and a piece of the grinder struck plaintiff's hand, injuring him.

The Second Department found the Industrial Code provision relied on by plaintiff to be sufficiently specific to support a Labor Law § 241(6) claim.  More specifically, the Court compared the language of section 23-1.5[c][3] to section 23-9.2[a], which provides that "[u]pon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement." In Misicki v. Caradonna (12 N.Y.3d 511 [2009]), the Court of Appeals held that section 23-9.2[a] was sufficiently specific to support a Labor Law claim.  By comparison of the words "corrected by necessary repairs or replacement" in section 23-9.2[a] with "repaired or restored... or removed" in section 23-1.5[c][3], as well as the words "upon discovery" with "immediately if damaged," the Second Department found that, in light of the Court of Appeals' holding in Misicki, section 23-1.5[c][3] must also be deemed to be sufficiently specific to support a Labor Law claim.    

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