Page 9 - Litigation

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Litigation | MONDAY, NOVEMBER 14, 2016 | S9
Assoc., 298 A.D.2d 339, 340 (2002), which denied summary judgment to plaintiffs on their section 241(6) cause of action because “12 NYCRR 23-9.2(a) merely established gen- eral safety standards [that] do not give rise to a non-delegable duty”—and granted the owner’s motion.
The court found for the owner on both of the grounds asserted for dismissal of the complaint, ruling that plaintiff had failed to rebut the owner’s showing that §23-1.12(c) did not apply to a handheld electronically- driven grinder. As for §23-9.2(a), given the owner’s reliance on the aforementioned three Second Department cases, notwithstanding plaintiff’s citation of two Fourth Department cases—Zacher v. Niagara Frontier Servs, 210 A.D.2d 897 (1994) (Labor Law §241(6) impos- es the “af rmative duty of maintenance and inspection of power-operated equipment”) and Piccolo v. St. John’s Home for Aging, 11 A.D.3d 884, 886 (2004) (“We have previously determined that 12 NYCRR 23-9.2(a) is suf- ciently speci c to support a claim pursu- ant to section 241(6))—the court held that because the case was being litigated “within the con nes of the Second Department,” it was compelled to follow that Department’s holding that “12 NYCRR 23-9.2 is not speci c enough to support a Labor Law §241(6) viola- tion.” Misicki, 2 N.Y.3d at 517.
Supreme Court granted reargument to plaintiff and denied the owner’s motion for summary judgment, ruling that the provi- sions in §23-9.2(a) “requir[ing] the repair or replacement of unsafe equipment [was]
While ‘Misicki’ is notable for its analysis of the application of the exception to the general rule that issues raised for the rst time on appeal will not be reviewed, it rejected the relevancy of the rule and its exception because the issue sought to be reviewed was raised, not by either of the parties but in a dissent in the case.
merely to assume, without deciding, that §23- 9.2(a) applies to a handheld electronically- driven angle grinder.
The majority also pointed out that the owner never even hinted, much less claimed in the Court of Appeals, that §23-9.2(a) is inap- plicable to the grinder. Nor did it ever argue that the grinder was a hand tool subject to other provisions of the Code (see, e.g., 12 NYCRR 23-1.10(b)). Finally, the court noted the unfairness of deciding the appeal on a distinct ground, the applicability of 12 NYCRR 23-9.2(a) to the power hand tool involved in plaintiff’s injury, that the court extracted wholly on its own. As the court observed, its decision nei- ther foreclosed the owner, if it so chooses, from asserting at trial that §23-9.2(a) is inap- plicable to the grinder nor deprived plaintiff of the opportunity of refuting the principle on which the dissent would rely in deciding the case against him. Misicki, 2 N.Y.3d at 519. In accordance with the Court’s reversal of the Appellate Division’s order and the denial of the owner’s motion for summary judgment dis- missing the Labor Law §241(6) cause of action, both parties would have that opportunity.
This determination left open only the ques- tion as to speci city of §23-9.2(a) to sustain a Labor Law §241(6) cause of action. While all four departments of the Appellate Division had, with differing results, considered the speci city of §23-9.2(a), its applicability to a grinder was neither briefed nor argued by the parties to the appeal. Nor had it theretofore been addressed by any New York court.
In its analysis of §23-9.2(a), » Page S14
a speci c positive command...applicable to the facts of the instant case.” However, the court allowed its original order determining the owner’s motion to remain in effect except as modi ed by its decision on reargument as to §23-9.2(a). The court further noted that a question of fact existed as to “whether §23- 9.2(a) was violated.”
The Appellate Division, Second Depart- ment, reversed, citing its previous decisions in Anaruma, Thompson and Phillips and the First Department’s decision in Hassett v. Celtic Holdings, 7 A.D.3d 364, 365 (2004) (“12 NYCRR 23-9.2(a) ... is a general requirement to maintain power equipment in good operating order.”). The Court of Appeals granted plain- tiff leave to appeal to resolve the apparent con ict between the Departments. 11 N.Y.3d 706 (2008),
Noting that subpart 23-9 applies to power- operated heavy equipment or machinery (12 NYCRR 23-9.1), such as excavating machines, pile drivers and motor trucks and that the owner never argued that the grinder was a hand tool subject to the Code provisions (see, e.g., 12 NYCRR 23-1.10(b)) or that, in
any event, was not “power operated heavy equipment or machinery” within the scope of the subpart 23-9, the Court of Appeals assumed, without deciding, that section 23-9.2(a) applied to a handheld nine-inch electronically-driven angle grinder.
Judge Robert Smith, in dissent, objected to the majority’s reliance on the assumption that §23-9.2(a) applies to a handheld grinder and, relying on the exception to the preservation rule, argued that “the plain inapplicability of the regulation plaintiff relies on” was deci- sive (“The provision of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demoli- tion and excavation operations.”). Misicki, 2 N.Y.3d at 525.
The Court’s majority responded by point- ing out that the case did not t the exception relied upon by the dissent because, rather than confronting a situation where a litigant, on appeal, advances a “newly raised point of law” not put forward in the trial court, it was the Court, not the dissent, that rst raised the applicability of §23-9 to the grinder, not as evidence to support plaintiff or the owner, but
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