COWAN v. ADF CONSTRUCTION CORP (2006)

 Plaintiffs commenced this action to recover damages for injuries sustained by Thomas J. Cowan (plaintiff) when he tripped and fell at a construction site.   Supreme Court properly denied those parts of the motion of defendant Niagara Lutheran Development, Inc., the owner of the construction site, and the cross motion of defendant ADF Construction Corp. (ADF), the general contractor on the project, for summary judgment dismissing the Labor Law § 241(6) claim insofar as it is predicated on an alleged violation of 12 NYCRR 23-1.7(e)(1).   That regulation is sufficiently specific to support a claim pursuant to section 241(6) (see Smith v. McClier Corp., 22 A.D.3d 369, 802 N.Y.S.2d 441;  Danchick v. Contegra Servs., 299 A.D.2d 923, 924, 750 N.Y.S.2d 384;  see generally Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503-505, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Moreover, there is a triable issue of fact concerning whether the area was in fact a passageway that defendants were obligated to keep free of obstructions or other conditions that might cause “tripping” (12 NYCRR 23-1.7[e][1];  see Smith, 22 A.D.3d at 370-371, 802 N.Y.S.2d 441;  Bopp v. A.M. Rizzo Elec. Contrs., 19 A.D.3d 348, 350, 796 N.Y.S.2d 153;  Kerins v. Vassar Coll., 293 A.D.2d 514, 515, 740 N.Y.S.2d 400;  Rosenberg v. Ben Krupinski Gen. Contrs., 284 A.D.2d 523, 524, 727 N.Y.S.2d 460).

 The court further properly denied that part of the cross motion of ADF for summary judgment dismissing the Labor Law § 200 claim and common-law negligence cause of action against it.   The contentions of ADF with respect to that claim and cause of action do not negate its duties with respect thereto but, rather, concern the issue of plaintiff's comparative negligence (see Maza v. University Ave. Dev. Corp., 13 A.D.3d 65, 786 N.Y.S.2d 149;  Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923, 924-925, 767 N.Y.S.2d 44;  Waszak v. State of New York, 275 A.D.2d 916, 916-917, 713 N.Y.S.2d 397).   There is a triable issue of fact concerning whether ADF failed to provide plaintiff with a safe place to work (see generally Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 353, 670 N.Y.S.2d 816, 693 N.E.2d 1068;  Ross, 81 N.Y.2d at 505-506, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Motyka v. Ogden Martin Sys. of Onondaga Ltd. Partnership, 272 A.D.2d 980, 980-981, 708 N.Y.S.2d 681).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: