Opinion
2015-06-02
Kresimir SOVULJ, Plaintiff–Appellant, v. PROCIDA REALTY AND CONSTRUCTION CORP. OF NEW YORK, et al., Defendants, Seventeen Development, LLC, et al., Defendants–Respondents. [And a Third–Party Action].
Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for appellant. Miranda, Sambursky, Slone, Sklarin, Verveniotis LLP, Mineola (Andrew Giuseppe Vassalle of counsel), for respondents.
Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for appellant. Miranda, Sambursky, Slone, Sklarin, Verveniotis LLP, Mineola (Andrew Giuseppe Vassalle of counsel), for respondents.
FRIEDMAN, J.P., SAXE, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered November 25, 2013, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff was injured when a grinder he was using to cut a groove in a floor kicked back on him, cutting his hand and wrist. Plaintiff admitted that he was using the grinder in a manner inconsistent with its recommended use, in that he had placed a saw tooth blade in the grinder and removed the grinder's safety guard to make the blade fit.
The motion court correctly determined that under these circumstances, defendants were not liable for plaintiff's injuries. Plaintiff alleged defendants' liability under Labor Law § 241(6), predicated on a violation of 12 NYCRR § 23–1.12(c). It is well settled that that section of the code does not pertain to the power tool plaintiff was using ( see e.g. Conforti v. Bovis Lend Lease LMB, Inc., 37 A.D.3d 235, 236, 829 N.Y.S.2d 498 [1st Dept.2007] ).
Plaintiff also alleged defendants' liability under Labor Law § 200, however, the record demonstrates that defendants did not supervise or control plaintiff's work ( Suconota v. Knickerbocker Props., LLC, 116 A.D.3d 508, 508, 984 N.Y.S.2d 27 [1st Dept.2014] ). Here, the decision to remove the grinder's safety guard was solely plaintiff's own.
We have considered plaintiff's remaining arguments and find them unavailing.