Defendants cite a recent trial court ruling "that Five Star is a proper Labor Law ยง 241 (6) defendant, since it functioned as a contractor or the City's statutory agent insofar as all electrical work at the project site was concerned." O'Rourke v City of New York, 35 Misc 3d 1232(A), *8, 2012 NY Slip Op 50973(U) (Sup Ct, Kings County 2012). Section 23-1.13 (3) specifies the grounding of equipment "nearer than 10 feet of an energized electric power line or power facility, located overhead or underground," at a construction site.
In this regard, the jury may assess whether plaintiff's reliance on the protocol without further inquiry may have constituted partial culpability, but only as to damages. (SeeRodriguez v. City of New York, 31 NY3d 312 [2018] ; see also,O'Rourke v. City of New York, 35 Misc 3d 1232 (A) [Sup Ct, Kings County, 2012, J. Ash].) The code provision ยง 23 -1.5 (a) is not specific enough to be enforceable, and is dismissed.
In a case where the plaintiff was injured by an electrical shock conducted from a light fixture to a scaffold, and the light fixture was subsequently destroyed, the court held that the party seeking sanctions was not entitled to them because, among other things, "the possibility that [the party moving for spoliation sanctions] may have taken the light cannot be excluded" (O'Rourke v City of New York, 35 Misc 3d 1232[A] [Sup Ct, Kings County 2012]).