We respectfully dissent in part. It is undisputed that Hugh Lee (plaintiff) scraped the knuckle of his right hand in the process of stuffing insulation underneath the roof and that, as he continued to stuff the insulation underneath the roof, his hand was allegedly exposed to dust from coal tar pitch used on the old roof. Plaintiff sought medical attention the next day because his hand had become infected, and he underwent subsequent surgeries to remove bacteria from his hand.
We disagree with the majority’s conclusion that Supreme Court erred in granting that part of defendants’ motion for summary judgment dismissing plaintiff’s claim pursuant to Labor Law § 241 (6) insofar as it is based on the alleged violations of 12 NYCRR 23-1.8 (c) (4) and 23-1.9 (d). Defendants established that the regulations upon which that claim is based are inapplicable herein, and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). 12 NYCRR 23-1.8 (c) (4) is inapplicable herein because the record is devoid of evidence that plaintiff “was required to use or handle [coal tar pitch]” (Esposito v D’Orsagna, 240 AD2d 195, 196 [1997], lv denied 90 NY2d 809 [1997]). Any claim pursuant to 12 NYCRR 23-1.9 (d) requiring “washing facilities” is wholly dependent upon employees being “required to use or handle corrosive substances, chemicals or other harmful substances,” which is not the case here.
We would, therefore, affirm the order granting defendants’ motion for summary judgment and dismissing the complaint. Present—Pigott, Jr., P.J., Green, Gorski, Smith and Lawton, JJ.