Roque v. 475 Bldg. Co., LLC

Roque v 475 Bldg. Co., LLC (2019 NY Slip Op 02829)

Roque v 475 Bldg. Co., LLC

2019 NY Slip Op 02829

Decided on April 16, 2019

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 April 16, 2019
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.

8998 305076/14

[*1]Anejandro Antonio Roque, Plaintiff-Respondent,

v

475 Building Co., LLC, Defendant-Appellant, 475 Managing Member, LLC, Defendant.

Wade Clark Mulcahy LLP, New York (Valeria Prizimenter of counsel), for appellant.

Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered on or about September 20, 2017, which, to the extent appealed from, denied the motion of defendant 475 Building Co., LLC for summary judgment dismissing that part of plaintiff's Labor Law § 241(6) claim that is premised upon a violation of 12 NYCRR 23-1.8(a), unanimously affirmed, without costs.

Plaintiff was injured when, while in the process of demolishing a sidewalk bridge at premises owned by defendants, a nail he was attempting to remove with a hammer struck him in the eye. Industrial Code 23-1.8(a) states that eye protection equipment "suitable for the hazard involved shall be provided for and shall be used by all persons . . . while engaged in any . . . operation which may endanger the eyes." The issue of whether demolishing a sidewalk bridge and removing nails are activities covered by 12 NYCRR 23-1.8(a) is an issue of fact (see Fresco v 157 E. 72nd St. Condominium, 2 AD3d 326, 328 [1st Dept 2003]; Cappiello v Telehouse Intl. Corp. of Am., 193 AD2d 478, 480 [1st Dept 1993]). The record further presents triable issues of fact as to whether plaintiff was the sole proximate cause of his injury (see Galawanji v 40 Sutton Place Condominium, 262 AD2d 55 [1st Dept 1999], lv denied 94 NY2d 756 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 16, 2019

CLERK