

Bundo v 10-12 Cooper Sq., Inc. (2016 NY Slip Op 04814)





Bundo v 10-12 Cooper Sq., Inc.


2016 NY Slip Op 04814


Decided on June 16, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 16, 2016

Acosta, J.P., Renwick, Saxe, Richter, Gische, JJ.


1496 104843/11

[*1]Altin Bundo, et al., Plaintiffs-Appellants, —
v10-12 Cooper Square, Inc., et al., Defendants-Respondents, Alpha Stone Corp., Defendant.


Rimland & Associates, New York (Michael H. Zhu of counsel), for appellants.
Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Marcia K. Raicus of counsel), for 10-12 Cooper Square, Inc. and Atlantic Development Group, LLC, respondents.
Faust Goetz Schenker & Blee LLP, New York (Peter Kreymer of counsel), for Cooper Square Contractors, LLC and To Better Days, LLC, respondents.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered April 24, 2015, which denied plaintiffs' motion for partial summary judgment on the common-law negligence and Labor Law § 241(6) claims, unanimously modified, on the law, to grant the motion as to the Labor Law § 241(6) claim, and otherwise affirmed, without costs.
The injured plaintiff's testimony that debris flew into his eye while he was grinding stone without wearing protective goggles established prima facie defendants' liability under Labor Law § 241(6), predicated on a violation of Industrial Code (12 NYCRR) § 23-1.8(a) ("Eye protection") (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). Contrary to defendants' contention, there is no evidence of culpable conduct on plaintiff's part (see Kutza v Bovis Lend Lease LMB, Inc., 131 AD3d 838, 839 [1st Dept 2015]; Once v Service Ctr. of N.Y., 96 AD3d 483, 483 [1st Dept 2012], lv dismissed 20 NY3d 1075 [2013]). Plaintiff was aware of the need for safety goggles when operating the grinder, and he asked his employer for goggles. However, he was told to begin work without them and that he would be provided with a pair as soon as possible.
Plaintiffs made a prima facie showing that defendants 10-12 Cooper Square, Inc. and Atlantic Development Group, L.L.C. are subject to the Labor Law by submitting leases and contracts listing these defendants as owners and lessees, and defendants did not rebut the showing (see Kane v Coundorous, 293 AD2d 309, 311 [1st Dept 2002]). Independent contractor status would not exclude the injured plaintiff from the Labor Law's protective ambit (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).
Having granted plaintiffs summary judgment as to defendants' liability under Labor Law § 241(6), we need not reach their arguments regarding the common-law negligence claim (see Fanning v Rockefeller Univ., 106 AD3d 484 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 16, 2016
CLERK


