Labor Law 241(6) Claim Dismissed; Power Saw Had Necessary Protective Guards

In Kruk v City of New York, the Appellate Division, First Department, on December 19, 2013 unanimously affirmed the lower court’s order granting summary judgment dismissing plaintiffs’ claim under Labor Law § 241(6).

Plaintiff was injured while using a power saw, when “the plywood he was cutting broke, pushing his left hand into the saw’s blade.”

The applicable regulation, Industrial Code (12 NYCRR) 23-1.12(c)(1), provides:

(c) Power-driven saws. (1) Every portable, power-driven, hand-operated saw which is not provided with a saw table, except chain saws and circular brush saws, shall be equipped with a fixed guard above the base plate which will completely protect the operator from contact with the saw blade when the saw is operating and with a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut. (Emphasis added.)

Here, defendant established its entitlement to judgment as a matter of law by presenting evidence – namely, the deposition testimony of plaintiff Jose Kruk and his coworker and its expert’s affidavit – that the saw “was equipped with the necessary protective guards in compliance with” the regulation.

In response, plaintiffs failed to raise a triable issue of fact. The court explained:

Plaintiffs’ opposition failed to raise a triable issue of fact. Plaintiffs submitted the transcript of the injured plaintiff’s General Municipal Law § 50-h hearing testimony in which he testified that the subject saw had a bottom guard which covered the saw blade when it was “closed.” He further stated that the plywood he was cutting broke, pushing his left hand into the saw’s blade. Such evidence is insufficient to raise an issue of fact as to whether the saw had a defective or inadequate “movable self-adjusting guard below the base plate,” which failed to “completely cover the saw blade to the depth of the teeth when such saw blade [was] removed from the cut”.

Plaintiffs’ theory that the accident was caused by defendant’s failure to provide the injured plaintiff with a saw table does not support his claim under Labor Law § 241(6) because 12 NYCRR 23-1.12(c)(1) does not require that a saw table be provided to workers using a “power-driven saw.” … [T]here is no evidence suggesting that the subject saw was altered or modified during the 16 months between plaintiff’s accident and the time of the examination of the saw by the expert. Moreover, the expert’s opinion was based, in part, on his review of certain photographs taken of the saw, which plaintiff testified were accurate depictions of the saw’s condition at the time of the accident.