Opinion
8998 Index 305076/14
04-16-2019
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.
Wade Clark Mulcahy LLP, New York (Valeria Prizimenter of counsel), for appellant.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
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 A.D.3d 326, 328, 769 N.Y.S.2d 536 [1st Dept. 2003] ; Cappiello v. Telehouse Intl. Corp. of Am., 193 A.D.2d 478, 480, 597 N.Y.S.2d 393 [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 A.D.2d 55, 691 N.Y.S.2d 436 [1st Dept. 1999], lv denied 94 N.Y.2d 756, 703 N.Y.S.2d 73, 724 N.E.2d 769 [1999] ).