SCHIULAZ v. ARNELL CONSTRUCTION CORP (1999)

Order, Supreme Court, Bronx County (Janice Bowman, J.), entered on or about September 16, 1998, which, inter alia, denied defendant Arnell Construction Corporation's (“Arnell's”) motion for summary judgment on its cross claims against defendant/third-party plaintiff Kilroy Metal Product, Inc. (“Kilroy”) for common-law and contractual indemnification, denied Kilroy's cross motion for summary judgment dismissing the complaint in its entirety or in the alternative for summary judgment on its third-party claims against third-party defendant Liberty Caulking Co., Inc. (“Liberty”) for common-law indemnification, and denied Liberty's cross motion for summary judgment dismissing plaintiffs' Labor Law § 241(6) claims, unanimously modified, on the law, to grant Liberty's motion for summary judgment dismissing plaintiff's Labor Law 241(6) claims, and otherwise affirmed, without costs.

 The alleged violations of OSHA standards cited by plaintiffs do not provide a basis for liability under Labor Law § 241(6) (see, Greenwood v. Shearson, Lehman & Hutton, 238 A.D.2d 311, 313, 656 N.Y.S.2d 295;  Williams v. White Haven Mem. Park, Inc., 227 A.D.2d 923, 924, 643 N.Y.S.2d 787).   Plaintiffs' attempt in their reply papers to raise for the first time violations of Industrial Code (12 NYCRR) §§ 23-5.1(f) and 23-1.2(b) was improper (see, Tchaika Renewal Co., Ltd. v. City of New York, 232 A.D.2d 250, 251, 648 N.Y.S.2d 96).   In any event, neither section constitutes a concrete or specific standard of conduct sufficient to support a Labor Law § 241(6) claim (see, Moutray v. Baron, 244 A.D.2d 618, 619, 663 N.Y.S.2d 926, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130;  Gordineer v. County of Orange, 205 A.D.2d 584, 613 N.Y.S.2d 247).  Accordingly, plaintiff's Labor Law § 241(6) claim should be dismissed and we modify to that extent.

 The appealed order should otherwise be affirmed.   The fact that Kilroy, a subcontractor which in turn subcontracted certain work to Liberty, plaintiff's employer, did not supervise plaintiff's work is irrelevant since there was evidence to support plaintiff's claim that Kilroy had negligently installed the scaffolding upon which plaintiff was injured, and the motion court therefore properly declined to dismiss plaintiff's claims against Kilroy under Labor Law § 200, common law negligence and breach of warranty (see, Terranova v. City of New York, 197 A.D.2d 402, 602 N.Y.S.2d 830).   For the same reasons, Kilroy is not entitled, at this time, to common-law indemnity from Liberty (see, Sheehan v. Fordham Univ., 259 A.D.2d 328, 329, 687 N.Y.S.2d 22, 23).   Similarly, there were triable issues concerning the degree of supervision and control over the site by Arnell, the general contractor, and thus its motion for summary judgment on its cross claims against Kilroy for common-law and contractual indemnity was properly denied (see, id.).

MEMORANDUM DECISION.