Chuchuca v. Redux Realty LLC — 303 A.D.2d 239

Majority

p. 239

Jorge Chuchuca, Appellant, v Redux Realty LLC et al., Defendants and Third-Party Plaintiffs-Respondents. Acme American Repairs, Inc., Third-Party Defendant-Respondent, et al., Third-Party Defendants.

[757 NYS2d 8]

Order, Supreme Court, Bronx County (Janice Bowman, J.), entered on or about January 23, 2002, which, insofar as appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that he was injured on defendants’ premises when a piece of wire that he was cutting struck him in the eye, and that defendants failed to provide him with safety goggles in violation of Labor Law § 241 (6) and Industrial Code (12 NYCRR) § 23-1.8 (a). However, the commercial dishwasher that plaintiff was repairing or “rebuilding” when injured was neither a “structure” (compare Smith v Shell Oil Co., 85 NY2d 1000 [1995] [free-standing gas station sign]; Gordon v Eastern Ry. Supply, 82 NY2d 555 [1993] [railroad car]; Lewis-Moors v Contel of N.Y., 78 NY2d 942 [1991] [telephone pole]), nor a part of a structure (see Malczewski v Cannon Design, 125 AD2d

p. 240

941 [1986] [computer equipment]; compare Joblon v Solow, 91 NY2d 457 [1998] [concrete block wall]; Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200 [2002] [water tank]), within the meaning of 12 NYCRR 23-1.4 (b) (13). Therefore, even if the work that plaintiff was doing could be considered “construction * * * work” within the meaning of section 241 (6) (but see Nagel v D & R Realty Corp., 99 NY2d 98 , 102-103 [2002]), he has no claim under that statute (see id.). While plaintiff’s general negligence claim is encompassed within Labor Law § 200, the record demonstrates neither supervision nor control by defendants as would subject them to any duty to provide a safe construction site (see Rizzuto v Wenger Contr. Co., 91 NY2d 343 , 352 [1998]). Concur — Mazzarelli, J.P., Saxe, Sullivan, Ellerin and Gonzalez, JJ.

Cases cited

Smith v. Shell Oil Co. 85 NY2d 1000 N.Y. 1995-06-08 p. 239
Gordon v. Eastern Railway Supply, Inc. 82 NY2d 555 N.Y. 1993-12-16 p. 239
Lewis-Moors v. Contel of New York, Inc. 78 NY2d 942 N.Y. 1991-07-09 p. 239
Joblon v. Solow 91 NY2d 457 N.Y. 1998-04-30 p. 240
Caraciolo v. 800 Second Avenue Condominium 294 AD2d 200 N.Y. App. Div. 2002-05-16 p. 240
Nagel v. D & R Realty Corp. 99 NY2d 98 N.Y. 2002-11-14 at 102-103 p. 240
Rizzuto v. L.A. Wenger Contracting Co. 91 NY2d 343 N.Y. 1998-03-31 at 352 p. 240

Statutes and regulations cited

Labor Law p. 240