MENDOZA v. [And A Third-Party Action]. (1998)

Order, Supreme Court, Bronx County (Howard Silver, J.), entered October 22, 1997, which, inter alia, granted the motion of defendant McDee Construction to dismiss plaintiff's Labor Law § 241(6) cause of action, unanimously affirmed, without costs.

 The motion court properly dismissed plaintiff's Labor Law § 241(6) cause of action predicated upon violations of 12 NYCRR §§ 23-1.7(e) and 2.1(b).   While we have held that violations of § 23-1.7(e)(1) may support a Labor Law § 241(6) cause of action (Farina v. Plaza Constr. Co., Inc., 238 A.D.2d 158, 655 N.Y.S.2d 952), we agree with the motion court that the dumpster where plaintiff stepped on a nail does not constitute a “passageway” pursuant to that regulation, and, accordingly, that that regulation is not applicable to the facts at bar (see, Cafarella v. Harrison Radiator Div. Of General Motors, 237 A.D.2d 936, 654 N.Y.S.2d 910;  Basile v. ICF Kaiser Engineers Corp., 227 A.D.2d 959, 643 N.Y.S.2d 854;  Adams v. Glass Fab, Inc., 212 A.D.2d 972, 624 N.Y.S.2d 705).   The other regulation upon which plaintiff relies, 12 NYCRR § 23-2.1(b), does not sufficiently set forth “a specific standard of conduct as opposed to a general reiteration of common-law principles” for its violation to qualify as a predicate for a Labor Law § 241(6) cause of action (Adams v. Glass Fab, Inc., supra at 973, 624 N.Y.S.2d 705;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-504, 601 N.Y.S.2d 49, 618 N.E.2d 82).

MEMORANDUM DECISION.