Judge Frederic Block
Dora Homes and Maguire Avenue Realty were general contractors at a site owned by Ovas. Pina, employed by Infinity Framing Construction—owned by Ulloa—hurt his eye while using a nail gun without protective goggles. The gun jammed, causing a second nail to fly out of the gun and strike Pina’s eye. A similar accident was reported to Ulloa two weeks earlier. Ulloa neither paid Pina’s medical bills, nor maintained workers’ compensation insurance. Pina sued Ovas, Dora and Maguire for damages. Pina’s workers compensation claims were settled for $53,000. The court granted defendants judgment on Pina’s New York Labor Law §200 claim. There was no evidence they controlled the manner in which Pina did his work. For Labor Law §241(6) purposes, Pina’s evidence created an issue whether a nail gun’s use may endanger eyes such that eye protection was required under Industrial Code §23-1.8(a). Discussing Misicki v. Caradonna and Industrial Code §23-1.5(c)(3) the court noted that since Pina offered evidence that his injury was caused by a defect made known to Ulloa, there were triable factual issues as to whether the subject nail gun was damaged, whether Ulloa knew of the damage, and whether the damage proximately caused Pina’s injury.