Justice James Catterson
Building owner 225 East 57th Street Owners Inc. contracted JMPB Enterprises’ removal of mirrored wall panels. JMPB employee Garcia was hurt when a panel broke during removal. Supreme Court dismissed Garcia’s Labor Law §§200 and 240(1) claims, as well as a claim under Labor Law §241(6) to the extent based on 12 NYCRR 23-3.3(b)(3) and 23-3.3(c). Garcia raised a fact issue if the work on the building constituted demolition. The First Department reversed, deeming the issue to be whether the breaking of a mirrored panel was the type of hazard contemplated by §§23-3.3(b)(3) and (c), Industrial Code safety rules on which Garcia relied. Discussing Medina v. City of New York and Ortega v. Everest Realty, and instructed by the Second Department’s decision in Smith v. New York City Hous. Auth., the panel found the code provisions cited by Garcia inapplicable. The mirror broke when Garcia removed it from the wall. Thus his injury arose from his work’s performance, not from structural instability caused by other demolition work. To guard, shore, or brace the mirror would have prevented Garcia from removing the mirror. Thus, the Industrial Code provisions relied on could not have protected him, and cannot support his claim.
