Lawyer v. Hoffman

Court: Appellate Division of the Supreme Court of the State of New York
Date filed: 2000-08-03
Citations: 275 A.D.2d 541, 711 N.Y.S.2d 618, 2000 N.Y. App. Div. LEXIS 8406
Copy Citations
3 Citing Cases
Lead Opinion
—Lahtinen, J.

Appeal from an order of the Supreme Court (Keniry, J.), entered May 20, 1999 in Saratoga County, which, inter alia, granted third-party defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was a construction laborer employed by third-party defendant engaged in installing a sewer line on property owned by defendant. Plaintiff was allegedly injured after he had retrieved a heavy manhole cover chain from a utility truck several hundred feet away from the work site and was carrying it along a temporary gravel roadbed when he slipped and fell on several inches of packed snow and ice. Plaintiff thereafter commenced this action against defendant alleging a violation of Labor Law § 241 (6) premised upon the failure to comply with 12 NYCRR 23-1.5,* 23-1.7 (d) and 23-1.33 (d). Defendant, in turn, commenced a third-party action seeking common-law indemnification from plaintiffs employer. Thereafter, third-

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party defendant moved for summary judgment dismissing the complaint arguing that the regulations alleged to have been violated were insufficient to support a claim under Labor Law § 241 (6). Defendant cross-moved for similar relief or, alternatively, common-law indemnification. Supreme Court, inter alia, granted third-party defendant’s motion and dismissed plaintiffs complaint. Plaintiff appeals.

We affirm. In order to sustain a cause of action pursuant to Labor Law § 241 (6), plaintiff was required to demonstrate the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury (see, D’Egidio v Frontier Ins. Co., 270 AD2d 763). This plaintiff failed to do. As for plaintiffs reliance upon 12 NYCRR 23-1.33 (d), there is doubt as to whether that section qualifies as a specific safety standard upon which a Labor Law § 241 (6) claim may be based (see, Hill v Corning, Inc., 237 AD2d 881, appeal dismissed, lv denied 90 NY2d 884; McMahon v Durst, 224 AD2d 324; cf., Ozzimo v H.E.S., Inc., 249 AD2d 912; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877). Nevertheless, we agree with Supreme Court that 12 NYCRR 23-1.33 applies to persons passing by construction operations and not to workers, such as plaintiff, on a construction site.

Likewise, although 12 NYCRR 23-1.7 (d), which sets forth concrete specifications governing slipping hazards, is sufficiently specific to sustain a Labor Law § 241 (6) claim, that regulation is inapplicable to the facts of this case because the temporary roadbed upon which plaintiff fell does not constitute a passageway, walkway or other elevated working surface contemplated by the regulation (see, Jennings v Lefcon Partnership, 250 AD2d 388, lv denied 92 NY2d 819; Francis v Aluminum Co., 240 AD2d 985, 987).

Accordingly, we find that Supreme Court properly granted third-party defendant’s motion for summary judgment dismissing plaintiffs complaint.

Cardona, P. J., Mercure, Crew III and Spain, JJ., concur. Ordered that the order is affirmed, with one bill of costs.

*.

Plaintiff did not pursue his Labor Law § 241 (6) claim based upon an alleged violation of NYCRR 23-1.5 on this appeal. Such a claim, in any event, may not be maintained (see, Creamer v Amsterdam High School, 241 AD2d 589, 591).