Opinion
CA 03-00303.
November 21, 2003.
Appeals from an order of Supreme Court, Erie County (Cosgrove, J.), entered October 30, 2002, which, inter alia, denied that part of the cross motion of fourth-party defendant for summary judgment seeking dismissal of plaintiff's claim pursuant to Labor Law § 241 (6).
Law Offices of John Quackenbush, Buffalo (John Wallace of Counsel), for Defendant-Appellant.
Goldberg Segalla LLP, Buffalo (Thomas F. Segalla of Counsel), for Fourth-Party Defendant-Appellant.
Collins Maxwell, L.L.P., Buffalo (Alan D. Voos of Counsel), for Plaintiff-Respondent.
Law Office of Walter R. Pacer, Jr., Buffalo (Walter R. Pacer, Jr., of Counsel), for Fourth-Party Plaintiff-Respondent.
Before: Present: Wisner, J.P., Hurlbutt, Scudder, Gorski, and Lawton, JJ.
MEMORANDUM AND ORDER
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 cross motion of fourth-party defendant seeking dismissal of plaintiff's claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 Nycrr 23-8.1 and 23-8.2 and as modified the order is affirmed without costs.
Memorandum: We conclude that Supreme Court erred in denying that part of the cross motion of fourth-party defendant seeking dismissal of plaintiff's claim pursuant to Labor Law § 241 (6) to the extent that it is based on the alleged violations of 12 NYCRR 23-8.1 and 23-8.2. Those regulations apply to the use of equipment not used at the time of plaintiff's injury ( see Jacome v. State of New York, 266 A.D.2d 345, 347). We therefore modify the order accordingly. We otherwise affirm the order for the reasons stated in the decision at Supreme Court (Cosgrove, J.).