TRONOLONE v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION 111315 (2010)

Caesar TRONOLONE and Kimberly Tronolone, Claimants-Appellants, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Defendant-Respondent. (Claim No. 111315.)

Decided: March 19, 2010

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Stephen C. Halpern of Counsel), for Claimants-Appellants. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. Anthony Rupp, III, of Counsel), for Defendant-Respondent.

Claimants commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Caesar Tronolone (claimant) when he slipped on a piece of scrap plywood that had been placed underneath a temporary road sign. The Court of Claims properly granted that part of defendant's motion for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as it is based on the alleged violation of 12 NYCRR 23-1.7(d). We note that the remaining causes of action were withdrawn prior to the court's determination. Although 12 NYCRR 23-1.7(d) is sufficiently specific to support a Labor Law § 241(6) cause of action (see Scarupa v. Lockport Energy Assoc., 245 A.D.2d 1038, 667 N.Y.S.2d 561), we nevertheless conclude that the piece of plywood on which claimant slipped “is not ․ the sort of [floor,] passageway, walkway, [scaffold, platform or other elevated] working area contemplated by 12 NYCRR 23-1.7(d)” (Barnes v. DeFoe/Halmer, 271 A.D.2d 387, 388, 705 N.Y.S.2d 628).

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

MEMORANDUM:

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