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INDUSTRIAL CODE PROVISION REQUIRING THAT SAFETY DEVICES BE KEPT SOUND AND OPERABLE CONSTITUTED A CONCRETE PREDICATE FOR A LABOR LAW 241 (6) CAUSE OF ACTION WHICH ALLEGED INJURY DUE TO THE ABSENCE OF A “PROTECTOR” ON A GRINDER.

The Second Department determined a provision in the Industrial Code, 12 NYCRR 23-9.2(a), was sufficiently concrete to serve as a predicate for a Labor Law 241 (6) cause of action. The plaintiff was using a grinder cut sheet metal when a piece of sheet metal and a piece of the grinder “shot out” and injured him. Plaintiff alleged a “protector” had been removed from the grinder:

Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . As a predicate to a section 241(6) cause of action, a plaintiff must allege a violation of a concrete specification promulgated by the Commissioner of the Department of Labor in the Industrial Code … . * * *

…[P]laintiff’s Labor Law § 241(6) claim is predicated on an alleged violation of 12 NYCRR 23-1.5(c)(3), which provides that “[a]ll 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.” Sections 23-9.2(a) and 23-1.5(c)(3) each set forth an action to be taken (“corrected by necessary repairs or replacement”; “repaired or restored . . . or removed”) and set forth the trigger or time frame for taking such action (“upon discovery”; “immediately . . . if damaged”). Therefore … we hold that 12 NYCRR 23-1.5(c)(3) is sufficiently concrete and specific to support the plaintiff’s Labor Law § 241(6) cause of action … . Perez v 286 Scholes St. Corp., 2015 NY Slip Op 09664, 2nd Dept 12-30-15

LABOR LAW (INDUSTRIAL CODE PROVISION REQUIRING SAFETY DEVICES BE KEPT SOUND AND OPERABLE WAS A CONCRETE PREDICATE FOR A LABOR LAW 241 (6) CAUSE OF ACTION)/INDUSTRIAL CODE (PROVISION REQUIRING SAFETY DEVICES BE KEPT SOUND AND OPERABLE WAS A CONCRETE PREDICATE FOR A LABOR LAW 241 (6) CAUSE OF ACTION)

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