Ortega v. Roman Catholic Diocese of Brooklyn

• Decision Date: 18 December 2019
• Docket Number: 2017–06457,Index No. 507160/13
• Citation: 178 A.D.3d 940,112 N.Y.S.3d 583 (Mem)
• Parties: Jose ORTEGA, Appellant, v. ROMAN CATHOLIC DIOCESE OF BROOKLYN, New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 940

112 N.Y.S.3d 583 (Mem)

Jose ORTEGA, Appellant,

v.ROMAN CATHOLIC DIOCESE OF BROOKLYN, New York, et al., Respondents.

2017–06457

Index No. 507160/13

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

Argued - October 15, 2019

December 18, 2019

Michael H. Zhu, Esq., P.C., New York, N.Y. (Edward Rimland of counsel), for appellant.

Murphy Higgins & Schiavetta, PLLC, New Rochelle, N.Y. (Daniel M. Schiavetta, Jr., of counsel), for respondents.

SHERI S. ROMAN, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an amended order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated May 12, 2017. The amended order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6).

ORDERED that the amended order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6) is granted.

While working as a concrete laborer at the defendants' property in Queens, the plaintiff was injured when the front leg of a three-wheeled compressor gave way, causing a portion of the plaintiff's right ring finger to become severed by the bent leg of the compressor. At his deposition, the plaintiff testified that approximately two months before the incident, a locking mechanism that served to stabilize the front leg and wheel of the compressor had broken. The plaintiff also testified that, as a makeshift remedy, his boss replaced the broken component with an ordinary screwdriver. The plaintiff testified that the accident occurred when the screwdriver popped out of the locking mechanism as he and two coworkers were attempting to push the compressor up a driveway.

The plaintiff subsequently commenced this action to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 241(6) predicated on alleged violations of Industrial Code ( 12 NYCRR) §§ 23–1.5(c), 23–1.28(a) and (b), and 23–9.2(a). Following the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability on the Labor Law § 241(6) cause of action. In an amended order dated May 12, 2017, the Supreme Court, inter alia, denied that branch of the plaintiff's motion. The plaintiff appeals.

Labor Law § 241(6) imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v. Caradonna , 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Grant v. City of New York , 109 A.D.3d 961, 963, 972 N.Y.S.2d 86 ). Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the Labor Law § 241(6) cause of action by showing that there were violations of certain...