(dissenting). Plaintiffs Labor Law § 241 (6) claim hinges on defendants’ alleged violation of 12 NYCRR 23-2.2 entitled “concrete work” and specifically subdivision (a) thereof, which states, as relevant here, that “[f]orms . . . shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape.” When this case was before us in 2007 (9 NY3d 47 [2007]), we concluded that the words *676“braced or tied together so as to maintain position and shape” were specific enough to establish liability under section 23-2.2 (a), but that a “more complete record” was necessary concerning “the nature of the object that caused the injury and the opinions of those expert in the construction of concrete walls as to whether the words of the regulation can sensibly be applied to anything but completed forms” (id. at 50-51).
The testimony at the “framed issue” hearing was clear that a form was just that, a completed form; and that the regulation could not be reasonably interpreted as applying to anything but completed forms. For that reason, I dissent and would answer the certified question in the negative.
On its face, the aim of the regulation at issue is to ensure the structural integrity of “forms” that have been assembled as part of the concrete work. Even plaintiffs expert conceded that forms are constructed by erecting a “form wall,” placing rebar in the middle, erecting a back form wall and then tying it together. He further explained that whenever concrete is poured, it must be poured into a form.
It is of no moment that both sides’ experts agreed that a form “wall” should be braced before the form is completed to ensure that it does not tip over during the process of constructing the form. The issue is not whether such bracing should be used to support a form “wall” or whether such bracing could be utilized as such support but, rather, whether section 23-2.2 (a) was designed to address the bracing of a form wall in the first place. In my view, the majority’s interpretation expands the reach of the regulation to include the bracing of an object, i.e., a form “wall” that is absent from the regulation, which directs that “forms” (and not a form wall) “be properly braced or tied together.”
Simply put, although plaintiff may have been struck by a form “wall,” he was not injured by a “form” and, more specifically, was not the victim of a type of accident this section was designed to prevent.* Had the regulation required that a form “wall” be braced “so as to maintain position and shape”—as the majority claims it should be interpreted—then that interpretation would be consistent with the regulation’s directives. But a cursory glance at the regulation provides the answer: *677“Forms . . . shall be properly braced or tied together so as to maintain position and shape.” Once the forms are erected, they are ready for a concrete pour, but that does not necessarily mean that the concrete will be ready for pouring at that moment. The regulation is there to ensure that such forms maintain their position and shape both before and during the pour, which can be done through either bracing or tying together. 12 NYCRR 23-2.2 (b) underscores that the regulation as a whole applies to completed forms, as it provides that “the stability of all forms . . . including all braces and other supports” must be continuously inspected “during the placing of concrete.” Indeed, section 23-2.2 (b) and section 23-2.2 (a) can be read in tandem as applying to completed forms; the latter provision requires that forms be braced or tied together even before the concrete pour (so as to protect against wind loads and vibrations), while the former provision affords protection to workers against the increased load on the forms by the liquid concrete. Because the majority interprets section 23-2.2 (a) in an extremely broad manner that finds no support in the testimony presented by the experts, I respectfully dissent.
Chief Judge Lippman and Judges Graffeo, Read, Smith and Abdus-Salaam concur with Judge Rivera; Judge Pigott dissents in an opinion.Order affirmed, with costs, and certified question answered in the affirmative.
Plaintiff asserted another cause of action under the Labor Law that may have been more appropriate, but he stipulated to its discontinuance (see Labor Law § 240).