Solis v. 32 Sixth Avenue Co.

Order, Supreme Court, New York County (Carol R. Edmead, J), entered January 4, 2006, which, to the extent appealed from as limited by the briefs, granted summary judgment dismissing plaintiffs Labor Law § 241 (6) cause of action, unanimously affirmed, with costs. Defendants contracted Alpine Construction & Development Corp. to perform exterior facade repairs, which included all masonry repairs indicated on the contract documents and/or as directed by owner. Plaintiff, employed by Alpine, was working with a coworker on a scaffold at the 36th floor of the building, using an electric hammer to remove bricks, when he tripped while standing on a foot high “mountain” of debris generated by the work. Defendants submitted sufficient proof to establish their prima facie case, thereby shifting the burden to plaintiff. Industrial Code (12 NYCRR) § 23-3.3 (b) (5) and (e) do not [390] support plaintiffs Labor Law § 241 (6) claim. The project did not call for the dismantling or razing of a building or structure, in whole or in part, and there were no contemplated changes to the structural integrity of the building. The masonry repair work being performed does not fall within the purview of “demolition” as defined in section 23-1.4 (b) (16) (see Baranello v Rudin Mgt. Co., 13 AD3d 245 [2004], lv denied 5 NY3d 706 [2005]). Nor is 12 NYCRR 23-1.7 (e) (2) applicable, because the debris covering the scaffold resulted directly from the masonry work plaintiff and his coworker were performing, and thus constituted an integral part of that work (Salinas v Barney Skanska Constr. Co., 2 AD3d 619, 622 [2003]). The conclusory opinion by plaintiffs expert, that the amount of debris on the scaffold exceeded the amount contemplated by the regulation, was speculative and unsupported by industry standards, and thus insufficient to withstand summary judgment (Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; see also DeLeon v State of New York, 22 AD3d 786, 788 [2005], lv denied 7 NY3d 701 [2006]). Concur—Tom, J.E, Andrias, Sullivan, Williams and Gonzalez, JJ.