                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   518437
________________________________

PETER BOOTS et al.,
                      Appellants,
     v                                      MEMORANDUM AND ORDER

BETTE & CRING, LLC,
                    Respondent.
________________________________


Calendar Date:   November 14, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                             __________


      Collins & Collins, LLC, Buffalo (Charles H. Cobb of
counsel), for appellants.

      Stockton, Barker & Mead, LLP, Troy (John B. Paniccia of
counsel), for respondent.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Ellis, J.),
entered October 15, 2013 in Franklin County, which granted
defendant's motion for summary judgment dismissing the complaint.

      While replacing a window of a school building, plaintiff
Peter Boots (hereinafter plaintiff) injured his left hand and
wrist when the utility knife he was using malfunctioned. As a
result, plaintiff and his spouse, derivatively, commenced this
action against defendant, alleging common-law negligence and
violations under Labor Law §§ 200, 240 (1) and 241 (6). Supreme
Court granted defendant's motion for summary judgment dismissing
the complaint. In their sole claim on appeal, plaintiffs now
assert that the court improperly dismissed their Labor Law § 241
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(6) cause of action.1

      General contractors have a nondelegable duty "to provide
reasonable and adequate protection and safety for workers and to
comply with the specific safety rules and regulations" set forth
in the Industrial Code (Misicki v Caradonna, 12 NY3d 511, 515
[2009] [internal quotation marks and citation omitted]; see
Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). A
viable claim pursuant to Labor Law § 241 (6) "must show the
applicability of a specific provision of the Industrial Code to
the relevant work, a violation of the regulation, and that such
violation constituted causally related negligence" (Copp v City
of Elmira, 31 AD3d 899, 899 [2006]; see Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, 504-505 [1993]). While contractors
can be held vicariously liable under section 241 (6), such
liability depends upon whether the regulatory provision that was
allegedly violated is a "'specific, positive command'" (Ross v
Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 504, quoting Allen v
Cloutier Constr. Corp., 44 NY2d 290, 297 [1978]), and not merely
a declaration of a general safety standard (see Misicki v
Caradonna, 12 NY3d at 515; Ross v Curtis-Palmer Hydro-Elec. Co.,
81 NY2d at 504-505).

      Plaintiffs allege in their bill of particulars that
defendant violated 12 NYCRR 23-1.10 (a), which states, in
pertinent part, that unpowered hand tools with "[s]plit or loose
tool handles shall not be used." Notably, this regulatory
provision does not merely impose a general duty to keep unpowered
hand tools in a "safe," "proper" or "adequate" condition (see
e.g. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502-506),
nor does it proscribe the usage of hand tools with "unsafe" or
"defective" handles, but, rather, specifically prohibits the use
of hand tools with "[s]plit or loose . . . handles."



     1
        Plaintiffs do not address Supreme Court's dismissal of
the common-law negligence and Labor Law §§ 200 and 241 (1) claims
on appeal and any claims with respect thereto are therefore
deemed abandoned (see Randall v Time Warner Cable, Inc., 81 AD3d
1149, 1150 n [2011]).
                              -3-                518437

      Having determined that plaintiffs have asserted a violation
of a regulatory provision that "'sets forth a specific standard
of conduct'" for general contractors and owners (Marshall v
Glenman Indus. & Commercial Contr. Corp., 117 AD3d 1124, 1126
[2014], quoting St. Louis v Town of N. Elba, 70 AD3d 1250, 1250
[2010], affd 16 NY3d 411 [2011]; see Hammond v International
Paper Co., 178 AD2d 798, 799 [1991]), thereby providing a
predicate basis for a claim under Labor Law § 241 (6), we are
left to decide whether the regulation applies to the facts
presented in this case.2 Plaintiff explained during his
examination before trial that, while he was cutting a piece of
plastic with a utility knife, the locking mechanism that secures
the retractable blade was loose, causing the blade to break in
half and cut plaintiff's wrist. Whether the dysfunctional
locking mechanism can fairly be considered to be a "[s]plit or
loose tool handle[]" is a question of law to be decided by the
courts (see Szafranski v Niagara Frontier Transp. Auth., 5 AD3d
1111, 1113 [2004]). A fair reading of the regulation upon which
plaintiffs rely, however, does not compel us to conclude that the
looseness of the locking mechanism – an internal component of the
knife and not a visible or functional part of the handle itself –
was what the Commissioner of Labor had contemplated in his
promulgation of 12 NYCRR 23-1.10 (a) (compare St. Louis v Town of
N. Elba, 16 NY3d 411, 415-416 [2011]). We are well aware that
the Industrial Code "should be sensibly interpreted and applied
to effectuate its purpose of protecting construction laborers
against hazards in the workplace" (id. at 416; accord Duffina v
County of Essex, 111 AD3d 1035, 1039 [2013]). However, while the
regulation sets forth a strict prohibition against using tools
that have loose or split handles, it makes no mention whatsoever
of the locking mechanism found within a hand tool, and we are
thus constrained to determine that it is inapplicable.
Accordingly, plaintiffs are without a viable cause of action


    2
        Although given ample opportunity to do so, plaintiffs
failed to preserve for appellate review their contention that
defendant improperly raised for the first time in its reply
papers that 12 NYCRR 23-1.10 (a) is inapplicable to the facts
presented in this action (see Seymour v Northline Utils., LLC, 79
AD3d 1386, 1389 [2010]).
                              -4-                  518437

pursuant to Labor Law § 241 (6).

     Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
