Terron-Alcantara v Charlie's Real Estate LLC
Attorneys and Parties
Brief Summary
A construction worker sought partial summary judgment on liability under Labor Law § 241(6) [construction-site safety provision requiring compliance with specific Industrial Code rules], based on Industrial Code (12 NYCRR) § 23-1.5(c)(3) [mandates that equipment in use shall be kept sound and operable and that damaged equipment shall be immediately repaired, restored, or removed from the job site], after an angle grinder without a guard kicked back and cut his arm.
The Bronx County Supreme Court denied plaintiff's motion for partial summary judgment on liability on the Labor Law § 241(6) claim premised on the Industrial Code violation.
The Appellate Division reversed that denial and granted plaintiff partial summary judgment as to liability on the Labor Law § 241(6) claim against Charlie's Real Estate LLC.
Plaintiff established that the grinder on the work site was missing a guard, was available for use, and caused his injury when it kicked back. His testimony was uncontradicted, his expert stated that accepted practice required a guard, and there was no evidence the unsafe grinder had been repaired, restored, or removed. Defendant's arguments that plaintiff should have used a sledgehammer showed, at most, comparative negligence, and the recalcitrant-worker defense did not apply.
Background
Plaintiff was working at a construction site when he used an angle grinder that lacked a guard. The grinder kicked back and its blade cut his arm. He sued, asserting a claim under Labor Law § 241(6) [construction-site safety provision requiring compliance with specific Industrial Code rules], specifically relying on Industrial Code (12 NYCRR) § 23-1.5(c)(3) [mandates that equipment in use shall be kept sound and operable and that damaged equipment shall be immediately repaired, restored, or removed from the job site]. Plaintiff testified that the grinder was on the work site and available to use, and he submitted an expert affidavit stating that good and accepted practice required using an angle grinder with a guard. Defendant argued that plaintiff had been instructed to use only a sledgehammer and not supplied with the grinder.
Lower Court Decision
The Supreme Court, Bronx County, denied plaintiff's motion for partial summary judgment as to liability on his Labor Law § 241(6) claim insofar as it was predicated on a violation of Industrial Code § 23-1.5(c)(3).
Appellate Division Reversal
The Appellate Division unanimously reversed, without costs, and granted the motion. It held that plaintiff made a prima facie showing of liability by proving the grinder was missing its guard, remained on the work site, and caused the injury. The court found no evidence that the defective grinder had been repaired, restored, or removed. It further held that defendant failed to raise a triable issue of fact because any misuse by plaintiff amounted only to comparative negligence, which does not defeat summary judgment on liability, and because the alleged instruction to use a sledgehammer was not a safety device. The court also rejected defendant's reliance on the recalcitrant-worker defense.
Legal Significance
The decision reinforces that a worker can obtain summary judgment on a Labor Law § 241(6) claim when undisputed evidence shows that defective equipment at a construction site violated Industrial Code § 23-1.5(c)(3). It also underscores that comparative negligence is not a bar to partial summary judgment on liability and that the recalcitrant-worker defense is generally tied to Labor Law § 240(1) claims and does not apply where no adequate safety device was provided.
If a construction-site tool is defective, such as an angle grinder missing its guard, and that defect causes injury, an owner may be held liable under Labor Law § 241(6) based on Industrial Code § 23-1.5(c)(3), even if the worker arguably should have used a different tool.