Opinion
06-16-2016
Altin BUNDO, et al., Plaintiffs–Appellants, v. 10–12 COOPER SQUARE, INC., et al., Defendants–Respondents, Alpha Stone Corp., Defendant.
Rimland & Associates, New York (Michael H. Zhu of counsel), for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for 10–12 Cooper Square, Inc. and Atlantic Development Group, LLC, respondents. Faust Goetz Schenker & Blee LLP, New York (Peter Kreymer of counsel), for Cooper Square Contractors, LLC and To Better Days, LLC, respondents.
Rimland & Associates, New York (Michael H. Zhu of counsel), for appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for 10–12 Cooper Square, Inc. and Atlantic Development Group, LLC, respondents.
Faust Goetz Schenker & Blee LLP, New York (Peter Kreymer of counsel), for Cooper Square Contractors, LLC and To Better Days, LLC, respondents.
ACOSTA, J.P., RENWICK, SAXE, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered April 24, 2015, which denied plaintiffs' motion for partial summary judgment on the common-law negligence and Labor Law § 241(6) claims, unanimously modified, on the law, to grant the motion as to the Labor Law § 241(6) claim, and otherwise affirmed, without costs.
The injured plaintiff's testimony that debris flew into his eye while he was grinding stone without wearing protective goggles established prima facie defendants' liability under Labor Law § 241(6), predicated on a violation of Industrial Code (12 NYCRR) § 23–1.8(a) (“Eye protection”) (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501–502, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). Contrary to defendants' contention, there is no evidence of culpable conduct on plaintiff's part (see Kutza v. Bovis Lend Lease LMB, Inc., 131 A.D.3d 838, 839, 16 N.Y.S.3d 58 [1st Dept.2015] ; Once v. Service Ctr. of N.Y., 96 A.D.3d 483, 483, 947 N.Y.S.2d 4 [1st Dept.2012], lv. dismissed 20 N.Y.3d 1075, 963 N.Y.S.2d 620, 986 N.E.2d 438 [2013] ). Plaintiff was aware of the need for safety goggles when operating the grinder, and he asked his employer for goggles. However, he was told to begin work without them and that he would be provided with a pair as soon as possible.
Plaintiffs made a prima facie showing that defendants 10–12 Cooper Square, Inc. and Atlantic Development Group, L.L.C. are subject to the Labor Law by submitting leases and contracts listing these defendants as owners and lessees, and defendants did not rebut the showing (see Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711 [1st Dept.2002] ). Independent contractor status would not exclude the injured plaintiff from the Labor Law's protective ambit (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] ).
Having granted plaintiffs summary judgment as to defendants' liability under Labor Law § 241(6), we need not reach their arguments regarding the common-law negligence claim (see Fanning v. Rockefeller Univ., 106 A.D.3d 484, 964 N.Y.S.2d 525 [1st Dept.2013] ).