[*1]
| Shields v First Ave. Bldrs. LLC |
| 2013 NY Slip Op 50707(U) [39 Misc 3d 1223(A)] |
| Decided on April 22, 2013 |
| Supreme Court, New York County |
| Madden, J. |
| Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, New York County
James Shields
and Eileen Cavanagh, Plaintiffs,
against
First Avenue Builders LLC, HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, FSLM ASSOCIATES LLC and
WORTHINGTON SpA., Defendants. WORTHINGTON SpA., Third-Party Plaintiff,
MC & O MASONRY, INC., Third-Party Defendant.
|
100620/07
Joan A. Madden, J.
In this action arising out of a work place accident, defendants First
Avenue Builders LLC ("First Avenue"), Housing Partnership Development Corporation
("Housing") and FSML Associates LLC ("FSML") move for summary judgment
dismissing plaintiffs' claims against them, and. third-party defendant, MC & O Masonry
("MC & O") submits an affirmation in support of defendants' motion.[FN1] Plaintiffs oppose the
motion.
BACKGROUND
Plaintiffs seek damages for
personal injuries sustained by plaintiff James Shields ("Shields") on October 10, 2006, at
construction project located at 40 West 116th Street, New York, NY, when he was
cleaning a concrete pump. The concrete pump was manufactured and designed by
non-party Reinert Manufacturing Company ("Reinert"), which is no longer in business.
The concrete pump was purchased by MC & O as a used piece of equipment and no
manufacturer's information or instruction manuals were provided with the pump.
Housing was the owner of the project; First Avenue was the general contractor; and
[*2]FSLM was the site developer. At the time of the
accident, Shields was working as a "mechanic and laborer" for the masonry company,
MC & O, under the supervision of Eamon McDonnell ("McDonnell"). Shields was in
charge of operating and cleaning the concrete pump which was used to transport concrete
from the ground level to higher level of the building . The accident occurred when
Shields was using his right hand to clean a portion of the pump known as a swing-tube
(also known as the swing pipe or pipe), and the pumping mechanism re-engaged trapping
his hand and resulting in the amputation of four of his fingers.
The swing-tube was controlled by a hydraulics mechanism that allowed the swing
tube to swing back and forth within the pipe thus pushing the concrete through a series of
pipes to higher levels in the building. There was an on and off switch for the hydraulics
and a separate pull-stop to shut off the engine of the concrete pump.
At his deposition, Shields testified that on the first day that he operated the pump,
McDonnell showed him how to disengage and engage the pump (Shields Dep., at 22). At
the time of the accident, the control panel of the pump had an on/off switch used to
engage or disengage the pump on the right side; further to the right was a key to turn the
motor on; to turn the motor off there was a pull-stop (Id., at 31-32). There were
also two levers on the left side of the control panel; one pushed the concrete out and the
other pushed the concrete in. (Id., at 33).
Shields was expected to clean the pump after operating it and had been shown by
McDonnell how to clean it on two occasions (Id., at 27). On the first occasion
Shields used a hose to clean the pump (Id., at 30). However, the pump did not
work properly when Shields cleaned it that way, and McDonnell brought the pump back
to Shields and told him that in addition to hosing it down, in order to properly clean that
pump, Shields needed to "put [his] hand in and check the groove inside"the swing pipe
(Id., at 27) and that unless the groove was cleaned like that every time there
would be problems (Id., at 30). Shields was not provided with a remote tool or
brush to reach the groove, which was located at a weld point that did not fill out evenly
which let concrete build up (Id, at 66-70, 140,141). McDonnell told Shields that
when he was cleaning the groove he should "disengage the pump, put [his] hand in,
check that groove, make sure it's clean"(Id., at 62) but made no mention of
turning the engine off (Id., at 63). Previously, McDonnell had instructed Shields
to keep the motor on while he hosed out the pump (Id., at 52). Both the engine
and the pump were on when it was being hosed down (54-55). Shields did not move the
position of the levers when cleaning the pump.
At his deposition, McDonnell testified that Shields was present when he purchased
the concrete pump (McDonnell Dep., 42) from a "James" (last-name unknown) and that
this James told him and Shields that the pump had to be thoroughly cleaned (Id.,
at 44). This involved making sure there was no build up of grout around a rubber ring in
the swing tube, and James instructed the two of them that "the only way you could do it
is go in and put your hand in and feel around the ring"(Id., at 45). James
physically demonstrated how to reach the ring with his hand (Id., at 46), and
Shields indicated that he understood James' instructions. (Id.). It was important to
make sure the ring was cleaned out as it acted as a pivot point of the swing tube and if
the grout hardened around the ring it would affect the swing tube (Id., at 45).
Shields, who was there at least partly because of his mechanical expertise, did not give
McDonnell any reason not to buy the pump and voiced no objections (Id., at
159). When McDonnell purchased the pump there were no labels on the pump and there
was no instruction manual (Id., at 66).
McDonnell testified that there were times when he told Shields that he needed to
check the ring of the pump and that he needed to put his arm into the tube of the pump to
do this (Id., at [*3]71). He did not tell Shields
whether the engine was to be on or off when checking the ring (Id.), but testified
that the engine could be running while the tube was being cleaned (Id., at 76).
There was a "kill switch [FN2]" to shut off the hydraulics which "was
meant to kill the hydraulics meaning the swing tube and the piston," (Id, at 77)
and that once this switch was turned off "the engine could still be running, but the
machine would be disabled" (Id.). McDonnell did not instruct Shields to use the
kill switch because " I didn't have to [Shields] knew there was a kill switch. He knew the
machine"(Id. 77).
Before the accident, one of the pump's hydraulic hoses "busted"(Id., at 84),
and McDonnell stated that Shields, as the mechanic, would have been the one to fix it
(Id., at 85). McDonnell testified that Shields told him after the accident that he
believed that the pump did not disengage as it should have because of a build up of
pressure (Id., at 94). McDonnell checked the machine after the accident and
noted that the oil would build up for seven or eight seconds after the pump was
disengaged and this would cause the tube to swing (Id., at 93). He did not
remember whether this problem occurred when James showed him and Shields how to
clean the pump (Id., at 95), but he testified that James did not tell him about the
problem (Id., at 96) and later testified that he did not know of the problem until
after the accident (Id., at 158).
There were "apparently changes to the pump after the accident" but McDonnell was
"not familiar [with them]" (Id., at 148). McDonnell testified, however, that the
switch for the hydraulics was changed after the accident as an additional black button
was added but he did not know when it was added or why (Id, at 165). The pump
was used approximately 40 to 50 times after the accident (Id., at 147), always
cleaned in the same way, with someone sticking his hand into the tube, and always
without incident (Id., at 149). However, the person checking the ring to make
sure it was clean would turn off the engine before putting their hand into the swing tube
(Id., at 169).
Kevin Tolbert, who is the vice president of construction for L & M Builders and
project manager for the project, testified that he was on site at the time of the accident but
did not speak with Shields. He did speak with McDonnell, who told him that Shields was
on his phone and forgot to "cut off" the pump to clean it as he ought to have (Tolbert
Dep., at 15) and that the arm of the pump swings back and forth on a time release if it is
not cut off (Id.). When McDonnell was asked about this exchange in his
deposition, he stated that he was "probably just speculated" and that he did not recall
saying that Shields was on his phone and forgot to disengage the pump (McDonnell
Dep., at 143).
In this action, plaintiffs seek to recover damages for violations of Labor Law
sections 240(1), 241(6) and 200. Defendants answered the complaint, and following the
completion of discovery, defendants made this motion for summary judgment dismissing
the complaint. Plaintiffs consent to the dismissal of the claims under Labor Law
§§ 240(1) and 200. Thus, at issue on this motion is whether plaintiffs have a
viable claim based on defendants' alleged violation of Labor Law section 241(6).
DISCUSSION
[*4]On a motion for summary judgment, the proponent "must
make a prima facie showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to eliminate any material issues of fact from the case." Wingard v.
New York Univ. Med. Center, 64 NY2d 851, 852 (1985). Once the proponent has
made this showing, the burden of proof shifts to the party opposing the motion to
produce evidentiary proof in admissible form to establish that material issues of fact exist
which require a trial. Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).
Labor Law section 241 (6) provides that "[a]ll areas in which construction,
excavation or demolition work is being performed shall be so constructed, shored,
equipped, guarded, arranged, operated and conducted as to provide reasonable and
adequate protection and safety to the persons employed therein or lawfully frequenting
such places." The section requires owners and contractors at a construction site to
"provide reasonable and adequate protection and safety for workers and to comply with
the specific safety rules and regulations promulgated by the Commissioner of the
Department of Labor." Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494,
502 (1993).
"The duty to comply with the Commissioner's safety rules, which are set out
in the Industrial Code, is nondelegable." Misicki v. Cardonna, 12 NY3d 511, 515 (2009). Thus, "to
the extent that a plaintiff has asserted a viable claim under Labor Law section 241(6), he
need not show that defendants exercised supervision or control over the worksite in order
to establish a right to recovery." Id. At the same time, however, a violation of
241(6) does not result in "absolute liability irrespective of the absence of a negligent
act which caused the injury [but rather] imposes a nondelegable duty upon an owner
or general contractor to respond in damages from injuries sustained due to another
party's negligence ..." Ruzzuto v. Wenger Construct. Co., 91 NY2d 343,
349-350 (1998)(emphasis in original).
Furthermore, "only a violation of the State Industrial Code and regulations
promulgated by the State Commissioner of Labor may serve as a basis for liability under
that statutory section" Heller v 83rd Street Investors Ltd. Partnership, 228 AD2d
371, 372 (1st Dept), lv denied 88 NY2d 815 (1996); see also Messina v City
of New York, 300 AD2d 121 (1st Dept 2002). A violation of a section of the
Industrial Code is only "some evidence of negligence." Ruzzuto v. Wenger
Construct. Co., 91 NY2d at 351. In addition, "[c]ontributory and comparative
negligence are valid defenses to a section 241(6) claim." Misicki v. Cardonna, 12
NY3d at 515. Moreover, "the particular provision relied upon by a plaintiff must
mandate compliance with concrete specifications and not simply declare general safety
standards or reiterate common-law principles." Misicki v. Cardonna, 12 NY3d at
515 (2009)(internal citation and quotations omitted).
In support of their section 241(6) claim, plaintiffs allege that defendants
violated Industrial Code section 23-9.2 (a)(maintenance of power-operated equipment)
and (d) (guarding of moving parts of equipment), and section 23-9.11(d)(guarding of
flywheels).[FN3]
[*5]
Subsection (a) of 23.9.2 of the Industrial
Code, entitled Power-Operated Equipment, provides, in relevant part that:
(a) Maintenance. All power-operated equipment shall be maintained in good
repair and in proper operating condition at all times. Sufficient inspections of adequate
frequency shall be made of such equipment to insure such maintenance. Upon discovery,
any structural defect or unsafe condition in such equipment shall be corrected by
necessary repairs or replacement. The servicing and repair of such equipment shall be
performed by or under the supervision of designated persons. Any servicing or repairing
of such equipment shall be performed only while such equipment is at rest.
With respect to section 23-9.2(a), the Court of Appeals has held that of the
first three sentences of this section, only the third sentence, which requires employers to
make necessary repairs "upon discovery [of] or actual notice of [any] structural defect or
unsafe condition" is sufficiently specific to provide a basis for liability under section
241(6). See Misicki v. Caradonna, 12 NY3d 511, 520-521 (2009). Defendants
argue that there is no liability under the standard in Misicki supra, as there is no
evidence that the defendants or MC & O had actual notice of a structural defect or unsafe
condition in connection with the concrete pump prior to the accident, and that, in
particular, the record shows that it was only after the accident that MC & O discovered
after testing the pump that the pump would re-engage about seven or eight seconds after
the hydraulics for the pump were turned off.
In further support of defendants' motion, MC & O submits the affidavit of
Dr. Ali Sadegh, a mechanical and bio-mechanical engineer and accident
reconstructionist, who opines the accident was caused by Shield's failure to turn off the
hydraulic pump before inserting his hand into the tube.
Plaintiffs counter that the record shows that Shield's injuries were caused by
a previously identified and unremedied structural defect or unsafe condition with the
pump, and that as long as plaintiffs' employer MC & O had notice of such unsafe
condition such notice can be imputed to the direct defendants for the purpose of finding
liability under section 241(6). In support of their position that MC & O had actual notice
of a structural defect and/or unsafe condition, defendants point to McDonnell's testimony
that he was told by the prior owner of the machine that in order to operate the pump
properly, the rubber ring in the swing tube needed to be cleaned manually after every use
with the engine running or the machine would become blocked and not operate.
Plaintiffs assert that MC & O was thus aware of a structural defect and/or dangerous
condition with the machine which allowed the build-up of grout around the ring or
defective weld at the location of the ring thus exposing the worker to a dangerous
condition of cleaning the pump with the worker's hand in a moving machine. They also
argue that cleaning the machine [*6]with the engine
running violated that last sentence of section 23-9.2(a), which requires that the servicing
and/or repairing of equipment like the concrete pump "shall be performed only while
such equipment is at rest."
In further support of their position, plaintiffs submit the affidavits of Steven
Kane, a safety engineer, and Kathleen Hopkins, a construction site safety expert.
Mr. Kane inspected the concrete pump, and the documentary evidence in this
action. Mr. Kane states that in his opinion, to a reasonable degree of engineering
certainty, that:
the design of the Reinert concrete pump was structurally defective in that
[Reinert] located a groove in the pumping system that was impossible to clean without
endangering workers. Grooves, notches, or other discontinuities in contact with concrete
are well known sites for accumulation of concrete and difficult to clean. Failing to clean
these sites of all concrete residue will result in further obstruction to the concrete flow,
eventually chocking it off completely. The proper design of the machine would have
included two very important safety features. First the design needed an interlock on the
machine that if the hopper cover was raised to allow cleaning of the hopper and pump
outlet opening, it would prevent hazardous movement....The second safety feature the
machine lacked was a proper cleaning method. It is never good design or practice to
design a machine that requires the insertion of a body part into an area where it may
encounter a moving part. Proper design of this machine would have been to allow the
machine to separate at the location behind the hopper to permit easy access.
Kane Affidavit, (¶¶ 7,8).
Ms. Hopkins who reviewed the various evidence in this action as well as Mr.
Kane's affidavit, opines, inter alia that "the grout pump was defectively designed
in that the swing tubes had to be cleaned out manually by inserting a hand within the
tubes while the machine was still running" (Hopkins Affidavit, ¶ 12). In support of
her conclusion, Hopkins notes that on its website Reinert stated that it redesigned its
concrete pump to avoid the build-up of grout. She also opines that cleaning of the pump
constituted "servicing" within the meaning of the final sentence of section 23.9.2(a) "in
that the hopper and grout pumping mechanisms had to be throughly water hosed and
cleaned and inspected and the interior two swing tubes had to be manually felt"
(Id., ¶ 16).
In reply, defendants argue that there is no evidence that defendants had
notice of any structural defect or dangerous condition, and that the defects identified by
plaintiffs regarding the proper cleaning method and the lack of an interlock mechanism
are design defects relevant to products liability claims but not addressed by the State
Industrial Code. Moreover, defendants argue that the record shows that Shields used the
cleaning method without incident prior to the accident, and there is no evidence that MC
& O or the defendants had prior notice of any defect due to the lack of an interlock
mechanism. Defendants further assert that the issue of whether the Industrial Code
applies is an issue of law for the court and the use of expert affidavits is
improper.[FN4]
[*7]Under the circumstances here, the court
finds that there are triable issues of fact as to whether MC & O had actual notice of an
unsafe condition such that the third sentence of 23 NYCRR 23.9.2(a), which requires the
repair or replacement of such condition, provides a predicate for liability under Labor
Law § 241(6). This conclusion is supported by evidence that the pump was
purchased in a used condition without any instruction manual or other directions, that
Shield's employer was aware that a groove in the swing tube of the pump had to be
cleaned manually, that this cleaning was performed with the engine running, and that the
pump would not work unless the ring or grove on the swing tube was cleaned manually.
Thus, issues of fact exist as to whether MC & O's knowledge of such condition and of
the manner in which the pump was to be cleaned constitutes of violation of the third
sentence of 23 NYCRR 23.9.2(a), and whether such condition was a proximate cause of
Shields' injuries.[FN5] See Salsinha v. Malcome Pirnie, Inc., 76 AD3d 411, 412
(1st Dept 2010)("whether the inability to open the door of a truck constitutes a structural
defect or unsafe condition' within the meaning of 12 NYCRR 23-9.2(a) and, if so,
whether such condition was a proximate cause of plaintiff's injuries must be determined
by the factfinder").
However, to the extent plaintiffs' experts opine that a defect exists for the
purposes of the third sentence of section 23-9.2(a) based on the lack on an interlock
mechanism, there is no evidence that defendants had actual notice of any such defect. In
this connection, the court notes that while expert evidence is permitted on the issue of
whether a certain condition or omission was in violation of a statute or regulation and as
to the meaning of specialized terms, the interpretation as to the meaning and applicability
of the law is for the court. Franco v. Jay Cee of New York Corp., 36 AD3d 445, 448
(1st Dept 2007); Morris v.
Pavarini Const., 9 NY3d 47, 51 (2007).
Next, the court finds that the record raises triable issues of fact as to whether
there was a violation of the last sentence of section 23.9.2(a), which requires that the
servicing and or repairing of equipment like the concrete pump "shall be performed only
while such equipment is at rest." This requirement is sufficiently specific to provide a
predicate for liability under section 241(6) since it imposes "an affirmative duty" and
"mandates a distinct standard of conduct." Misicki v. Caradonna, 12 NY3d at
521 (internal citations and quotations omitted). Here, the [*8]record shows that the engine of the concrete pump was
running when Shields was cleaning it at the time of the accident and, at the very least,
raises issues of fact as to whether MC & O knew that the engine was running based, in
part, on McDonnell's testimony that he was aware that the engine was allowed to run
while the pump was cleaned. Furthermore, the court finds that servicing includes
cleaning under the circumstances of this case, and to the extent servicing can be
considered a specialized term, Ms. Hopper's opinion supports this conclusion.
Plaintiffs also rely on subsection (d) of section 23-9.2, which states as
follows:
(d) Protection of moving parts. Gears, belts, sprockets, drums, sheaves and
any points of contact between moving parts of power-operated equipment or machines
when not guarded by location shall be guarded in compliance with this Part (rule) and
with Industrial Code Part (rule) 19.
Defendants argue that this section does not apply here as there are no
allegations that any exterior moving parts like those listed in this provision were
improperly guarded and that rule 19 was repealed prior to Shield's accident and therefore
does not provide a basis for liability. Hassett v. Celtic Holdings, LLC, 7 AD3d 364 (1st Dept
2004).
In opposition, plaintiffs assert that "any points of contact between moving
parts" is broad enough to include the unguarded portion of the concrete pump that
Shields came in contact with, and that there is no limitation in the section with respect to
interior parts. In addition, plaintiffs rely on Hopkins' statement that Section 23-9.2(d) "is
applicable to the instant matter as this section confers a positive command that any point
of contact between moving parts of power-operated equipment or machines when not
guarded by location or otherwise guarded [and that] had the grout tube been guarded...to
prevent the insertion of [Shield's] hand ...the accident would not have occurred."
(Hopkins' Affidavit, ¶ 19).
"The Industrial Code should be sensibly interpreted and applied to effectuate
its purpose of protecting construction laborers against hazards in the workplace ....
Accordingly, the preferred rule both as a matter of statutory interpretation and as a
reinforcement of the objectives of the Industrial Code is to take into consideration the
function of a piece of equipment, and not merely the name, when determining the
applicability of a regulation." St
Louis v. Town of N. Elba, 16 NY3d 411, 416 (2011)
Even under the liberal principles for applying the Industrial Code, the court
finds that section 23-9.2(d) does not apply here since it cannot be said that the interior
moving parts at issue in this action are "not guarded by location." This conclusion is
supported by section 23-1.12, entitled "guarding of power driven machinery," which
does not include any interior moving parts similar to those at issue and applies only to the
machines or their parts which are not otherwise "protected by their location or
design.[FN6]"
[*9]
Moreover, the statements in Hopkins'
affidavit are insufficient to raise a triable issue of fact in this regard as she fails to offer
any basis for her conclusion that guards were required on the interior of the pump or any
explanation for the need for such guards if the pump was functioning correctly.
Accordingly, section 23-9.2(d) does not provide a basis for liability here.[FN7]
Plaintiffs also rely on section 23-9.11(d), regarding mixing machines, which
provides that "[f]lywheels and power transmission mechanisms shall be kept covered and
guarded against accidental contact."
Defendants argue that this provision is inapplicable as the cement pump is
not a mixing machine and that the accident did not involve a flywheel or power
transmission mechanism that needed to be covered or guarded.
In opposition, plaintiffs rely on Ms. Hopkins' statement that section
23-9.11(d) is applicable to the instant matter and that Shield's accident "shows that the
power transmission mechanisms, the swing tube, was not covered and guarded against
contact."
The court finds that section 23-9.11(d) is not applicable here as the record
shows that the cement pump does not function as a mixing machine but rather as a pump
to move concrete from a lower level to a higher level. Furthermore, there is no evidence
that the swing tubes functioned as a "power transmission mechanism" and Ms. Hopkins'
conclusory assertions to the contrary are insufficient to raise a triable issue of fact. In any
event, as the swing tube is in the interior of the pump, it would appear there would be no
need to cover or guard it from contact. Accordingly, plaintiffs have failed to raise a
triable issue of fact as to the applicability of section 23-9.11(d).
CONCLUSION
In
view of the above it is
ORDERED that defendants' motion for summary judgment is granted to the
extent of dismissing plaintiffs' claims under Labor Law sections 240 and 200; and it is
further
ORDERED that defendants' motion for summary judgment dismissing
plaintiffs' Labor Law section 241(6) claim is denied to the extent of finding that the third
sentence and the last sentence of 23-9.2(a) provide a predicate for liability insofar as
indicated herein and is otherwise granted; and it is further
ORDERED that the parties shall proceed to mediation.
Dated: April 22, 2013
J.S.C.
Footnotes
Footnote 1:By decision and order
dated January 14, 2013, this court granted defendant/third party plaintiff Worthington
SpA's motion for renewal of its motion for summary judgment and, upon renewal,
granted summary judgment dismissing the claims, cross claims and counterclaims against
Worthington SpA on the ground that it could not be held liable as a successor of
non-party Reinert Manufacturing Company, a now defunct company, that manufactured
and designed the concrete pump at issue here.
Footnote 2:McDonnell subsequently
called the switch used to engage and disengage the pump the "disengagement switch"
and identified the mechanism used to stop the engine as a "kill switch" (Id., at
95). However, it is clear that from the record that in this portion of the testimony
McDonnell was referring to the on/off switch used to engage and disengage the pump.
Footnote 3:Plaintiffs do not oppose
the motion insofar as defendants argue that Industrial Code sections 23-1.5(a), 23-9.2(b),
23-9.11(e), 23-19.2(b), 23-19.2(j), 23-19.3 and 23-19.8(a) alleged in plaintiffs' Verified
Bill of Particulars do not provide a basis for liability. With respect to section 23-9.2(b),
although one of plaintiffs' experts discusses this section in her affidavit, plaintiffs do not
mention it in their opposition papers. In any event, this section, which provides that
power operated equipment shall be operated safely and by trained persons is not
sufficiently specific to provide a predicate for liability under section 241(6). See Scott v. Westmore Fuel Co.,
Inc., 96 AD3d 520, 521 (1st Dept 2012).. To the extent plaintiffs argue that 29
CFR §§ 1926.20(b)(2), 1926.702(j)(1) and (2) provide a basis for liability such
argument is unavailing as it is well established that OSHA regulations do not impose a
non-delegable duty on an owner or general contractor and therefore may not be used as a
predicate for a Labor Law section 241(6) claim. Rizzuto v L.A. Wenger Contracting
Co., Inc., 91 NY2d at 350.
Footnote 4:Defendants also argue
that Ms. Hopkins affidavit should not be considered as it was not timely disclosed and
was notarized in New Jersey and lacks a certificate of conformity. These arguments are
unavailing. Even assuming that plaintiffs failed to timely identify Ms. Hopkins as an
expert the court may consider her affidavit since there is no indication that any such
failure "was intentional or willful and there is no showing of prejudice" to defendants. Hernandez-Vega v. Zwanger-Pesiri
Radiology Group, 39 AD3d 710, 711 (2d Dept 2007); see also Alston v.
New York City Transit Authority., 23 AD3d 239 (1st Dept 2005). Next, the absence
of a certificate of conformity as required under CPLR § 2309(c) is "a mere
irregularity and not a fatal defect." Matapos Tech. Ltd. v. Compania Andina de Comercio Ltda, 68
AD3d 672, 673 (1st Dept 2009); see also Hall v. Elrac, Inc., 79 AD3d 427 (1st Dept 2010);
compare Scott v. Westmore Fuel Co. Inc., 96 AD3d at 521.
Footnote 5:While the defendants
focus on whether Shields' injuries were caused by a design defect as opposed to a
structural defect or dangerous condition for the purpose of the Industrial Code section
23-9.2(a), the court need not reach this issue as a jury question is raised as to whether the
need to clean the pump manually constituted an unsafe condition.
Footnote 6:The section requires that
the following machines or their parts be guarded: "keys, set screws, bolts and similar
projections on revolving parts of machines "that are not protected by location," power
driven saws, circular table saws, "sprockets or gears not protected by location or design
from accidental contact by persons," "belts, pulleys and flywheels... not protected by
location from accidental contact by persons," "friction-disc drives... not protected by
location from accidental contact by persons," and "nip points between ...wire rope."
Footnote 7:The only two reported
cases discussing section 23-9.2(d) summarily found that the section did not apply and
thus could not provide a basis for liability under Labor Law section 241(6). See Fisher v. WNY Bus Parts,
Inc., 12 AD3d 1138 (4th Dept 2004); Hassett v. Celtic Holdings, LLC, 7
AD3d at 365;