Opinion
03-28-2024
William MANN, Plaintiff–Appellant, v. MEZUYON, LLC, Defendant–Respondent, Breaking Solutions, Inc., Defendant. Mezuyon, LLC, Third–Party Plaintiff–Respondent, v. Mayrich Construction Corp., Third–Party Defendant–Respondent.
William Schwitzer & Associates, P.C., New York (Travis K. Wong of counsel), for appellant. Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for Mezuyon, LLC, respondent. Law Offices of Kevin P. Westerman, Elmsford (Richard W. Ashnault of counsel), for Mayrich Construction Corp., respondent.
William Schwitzer & Associates, P.C., New York (Travis K. Wong of counsel), for appellant.
Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for Mezuyon, LLC, respondent.
Law Offices of Kevin P. Westerman, Elmsford (Richard W. Ashnault of counsel), for Mayrich Construction Corp., respondent.
Manzanet–Daniels, J.P., Kapnick, González, Mendez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Richard Latin, J.), entered April 14, 2023, which, to the extent appealed from, granted third-party defendant Mayrich Construction Corp.’s motion for summary judgment dismissing plaintiff's claim pursuant to Labor Law § 241(6) predicated on Industrial Code (12 NYCRR) § 23–4.2(k), unanimously affirmed, without costs.
Plaintiff alleges that he was injured while working as a drill blaster at an excavation site when he was struck by an excavator machine. He asserts a Labor Law § 241(6) claim predicated on violation of Industrial Code § 23–4.2(k), which states that "[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged or falling from such equipment." This Court has previously held that Industrial Code § 23–4.2(k) is insufficiently specific to support a Labor Law § 241(6) claim (see Sparendam v. Lehr Canstr. Corp., 24 A.D.3d 388, 389, 807 N.Y.S.2d 335 [1st Dept. 2005], lv denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006]; Willis v. Plaza Constr. Corp., 151 A.D.3d 568, 568, 54 N.Y.S.3d 281 [1st Dept. 2017]). The Third and Fourth Departments have also concurred with this Court (see Vicki v. City of Niagara Falls, 215 A.D.3d 1285, 1289, 189 N.Y.S.3d 332 [4th Dept. 2023]; Mohamed v. City of Watervliet, 106 A.D.3d 1244, 1247, 965 N.Y.S.2d 637 [3rd Dept. 2013]).
We decline to adopt the Second Department’s view as set forth in Garcia v. Silver Oak USA, 298 A.D.2d 555, 748 N.Y.S.2d 674 (2nd Dept. 2002).