LAWYER v. Florida Gulf Construction Company, Third-Party Defendant-Respondent. (2000)

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 23-1.5,¹ 23-1.7(d) and 23-1.33(d).  Defendant, in turn, commenced a third-party action seeking common-law indemnification from plaintiff's employer.   Thereafter, third-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 plaintiff's 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 A.D.2d 763, 704 N.Y.S.2d 750).   This plaintiff failed to do.   As for plaintiff's 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 A.D.2d 881, 654 N.Y.S.2d 524, lv. dismissed, lv. denied 90 N.Y.2d 884, 661 N.Y.S.2d 826, 684 N.E.2d 275;  McMahon v. Durst, 224 A.D.2d 324, 638 N.Y.S.2d 48;  cf., Ozzimo v. H.E.S. Inc., 249 A.D.2d 912, 672 N.Y.S.2d 197;  McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 629 N.Y.S.2d 358).   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 A.D.2d 388, 673 N.Y.S.2d 85, lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 421, 708 N.E.2d 178;  Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 987, 659 N.Y.S.2d 903).

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

ORDERED that the order is affirmed, with one bill of costs.

FOOTNOTES

1.   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 A.D.2d 589, 591, 659 N.Y.S.2d 560).

LAHTINEN, J.

CARDONA, P.J., MERCURE, CREW III and SPAIN, JJ., concur.