Safety Device Requirement in Industrial Code Was Specific Enough to Support Labor Law 241(6) Action Based Upon the Absence of a Safety Guard on a Tile Grinder

The First Department, over a dissent, determined that a rule (Industrial Code) requiring that all safety devices be kept sound and operable was specific enough to support a Labor Law 241(6) action based upon the absence of safety guard from a tile grinder:

The motion court erred in finding that section 23-1.5(c)(3) was too general to support plaintiff’s Labor Law § 241(6) claim. Industrial Code (12 NYCRR) § 23-1.5(c)(3) provides, “All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.” In Misicki v Caradonna (12 NY3d 511, 520-521 [2009]), the Court of Appeals held that the third sentence of 12 NYCRR 23-9.2(a), which says, “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement,” imposed an affirmative duty, rather than merely reciting common-law principles, and that therefore its violation was sufficiently specific to support a Labor Law § 241(6) claim. The regulation plaintiff relies on here, 12 NYCRR 23-1.5(c), has a structure similar to 12 NYCRR 23-9.2(a): the first two sentences of section 23-9.2(a) and the first two paragraphs of section 23-1.5(c) employ general phrases (e.g., “good repair, “proper operating condition,” “sufficient inspections,” “adequate frequency”) while the third sentence and paragraph “mandate[] a distinct standard of conduct, rather than a general reiteration of common-law principles, and [are] precisely the type of concrete specification’ that Ross [v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993])] requires” (Misicki, 12 NY3d at 521). Since the final paragraph of section 23-1.5(c) is functionally indistinguishable from the third sentence of section 23-9.2(a), in that both mandate a distinct standard of conduct, we find that the Court of Appeals’ reasoning in Misicki applies here, and reject the dissent’s suggestion that the preamble of section 23-1.5 precludes any reliance on the section for purposes of Labor Law § 241(6). Becerra v Promenade Apts. Inc., 2015 NY Slip Op 02191, 1st Dept 3-19-15