         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1163
CA 11-00979
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


SEAN LETTS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

GLOBE METALLURGICAL, INC., DEFENDANT-APPELLANT.


LAW OFFICES OF LAURIE G. OGDEN, BUFFALO (JOHN WALLACE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROWN CHIARI LLP, LANCASTER (SAMUEL J. CAPIZZI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered April 8, 2011 in a personal
injury action. The order, insofar as appealed from, denied in part
the motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting defendant’s motion with
respect to the Labor Law § 241 (6) claim in its entirety and
dismissing that claim and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained when a 2,400-pound steel plate that he had
welded into place fell on him, pinning him to the floor. Defendant
owns the plant where the accident occurred, and the complaint alleges
common-law negligence and the violation of Labor Law §§ 200 and 241
(6). Supreme Court granted defendant’s motion for summary judgment
dismissing the complaint only with respect to part of the Labor Law §
241 (6) claim. We conclude that the court erred in failing to grant
defendant’s motion with respect to the section 241 (6) claim in its
entirety but otherwise properly denied the motion. We therefore
modify the order accordingly.

     We agree with defendant that neither of the two Industrial Code
regulations on which plaintiff relies to support the remainder of his
Labor Law § 241 (6) claim are applicable to this case (see Smith v Le
Frois Dev., LLC, 28 AD3d 1133, 1133-1134). In support of its motion,
defendant established that the work in which plaintiff was engaged at
the time of his injury did not involve the placing of a load “on open
web steel joists” (12 NYCRR 23-2.3 [a] [3]), nor did it involve the
“[h]oling or cutting of structural steel members” (12 NYCRR 23-2.3
[b]). Defendant also established that the steel plate plaintiff had
                                 -2-                          1163
                                                         CA 11-00979

welded was neither a “structural member[]” (12 NYCRR 23-2.3 [a]) nor a
“[l]oad-bearing structural steel member[]” (12 NYCRR 23-2.3 [b]). In
response, plaintiff failed to raise a triable issue of fact regarding
the applicability of those regulations. In light of our determination
with respect to the inapplicability of those two regulations, we need
not address defendant’s further contention that plaintiff was not
engaged in conduct protected by Labor Law § 241 (6) at the time of his
injury.

     Contrary to defendant’s further contention, the court properly
denied those parts of its motion with respect to the common-law
negligence and Labor Law § 200 claims. Indeed, the evidence offered
by defendant in support of its motion raised an issue of fact whether
defendant, through one of its agents, had input into the method used
by plaintiff in carrying out the injury-producing work, and thus
defendant failed to meet its initial burden with respect to those two
claims (see Comes v New York State Elec. & Gas, 82 NY2d 876, 877).
Given that defendant failed to meet its initial burden, we do not
address defendant’s contention that the expert affidavit submitted by
plaintiff was insufficient to raise a triable issue of fact (see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
