The Second Department determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed. Although the specific Industrial Code regulation relied upon by plaintiff was not identified in the pleadings no prejudice resulted from any delay in identifying it. Plaintiff’s thumb was severed using a makeshift table saw consisting of a circular saw attached to the bottom of a table. Supreme Court held the Industrial Code regulation requiring a guard on a table saw did not apply to a portable saw. However, the portable saw was being used as a table saw, thus the regulation applied. The Second Department also noted that an otherwise untimely motion or cross motion for summary judgment should be considered if the issues raised are identical to a timely summary judgment motion made by another party. Here portions of the untimely motion were identical to the timely motion, but other portions were not. The identical portions should have been considered:
12 NYCRR 23-1.12(c)(2) requires that “[e]very power-driven saw, other than a portable saw, . . . be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth.” The Supreme Court incorrectly concluded that this provision was inapplicable to the facts of this case because it applies to table saws, not portable saws. “[W]hen determining the applicability of a regulation,” the court must “take into consideration the function of a piece of equipment, and not merely the name” … . The circular saw at issue was being used as a table saw at the time of the plaintiff’s accident, and, thus, the same safety precautions as are required for other power-driven table saws are applicable … . Accordingly, the branch of [defendant’s] motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against him should have been denied. …
Although [defendant’s] cross motion was untimely, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds … . The branch of [defendant’s] cross motion which was for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it was not made on grounds nearly identical to the similar branch of [the] timely motion, since it rested on the separate factual assertion that it did not exercise supervisory control over the work. Sheng Hai Tong v K & K 7619, Inc., 2016 NY Slip Op 07637, 2nd Dept 11-16-16
LABOR LAW-CONSTRUCTION LAW (MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS)/CIVIL PROCEDURE (UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED)/SUMMARY JUDGMENT, MOTIONS FOR (UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED)/TABLE SAWS (LABOR LAW, MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS)