Hernandez v. Seadyck Realty Co.

• Decision Date: 24 March 2016
• Docket Number: 618, 157770/12.
• Parties: Angel HERNANDEZ, Plaintiff–Respondent, v. SEADYCK REALTY CO., LLC, Defendant–Appellant, John Doe, Inc., Defendant. [And A Third–Party Action].
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 656
29 N.Y.S.3d 5
2016 N.Y. Slip Op. 02172

Angel HERNANDEZ, Plaintiff–Respondent,
v.
SEADYCK REALTY CO., LLC, Defendant–Appellant,

John Doe, Inc., Defendant.

[And A Third–Party Action].

618, 157770/12.

Supreme Court, Appellate Division, First Department, New York.

March 24, 2016.

29 N.Y.S.3d 5

Rafter and Associates PLLC, New York (Howard K. Fishman of counsel), for appellant.

Ginarte, O'Dwyer, Gonzalez, New York (Richard M. Winograd of counsel), for respondent.

MAZZARELLI, J.P., MANZANET–DANIELS, KAPNICK, WEBBER, JJ.

137 A.D.3d 656

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about August 3, 2015, which, insofar as appealed from, denied that branch of the motion of defendant Seadyck Realty Co., LLC (Seadyck) for summary judgment dismissing the Labor Law § 241(6) claim

29 N.Y.S.3d 6

predicated upon a violation of 12 NYCRR 23–1.12(c), unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff was injured when a grinder he was using to cut a hole in a wooden bathroom vanity kicked back on him, cutting his hand and wrist. Plaintiff testified that when his employer gave him the grinder to complete his assigned task, it did not have a grinding disk or a guard attached, but instead, had a saw blade with large teeth for cutting wood. We are constrained

137 A.D.3d 657

by recent precedent to find that it is irrelevant whether the modified grinder was functionally equivalent to a power-driven saw in determining whether it falls within 12 NYCRR 23–1.12(c), since the plain language of that section indicates that it is applicable to “[e]very portable, power-driven, hand-operated saw,” not grinders (see Sovulj v. Procida Realty and Constr. Corp. of N.Y., 129 A.D.3d 414, 11 N.Y.S.3d 23 [1st Dept.2015] We note, however, that, according to the briefs submitted in Conforti v....