VENEZIA v. STATE (2008)

In a claim to recover damages for personal injuries, the claimant appeals, as limited by his brief, from so much of an order of the Court of Claims (Ruderman, J.), dated June 27, 2007, as granted those branches of the defendant's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action and so much of the Labor Law § 241(6) cause of action as was predicated upon alleged violations of 12 NYCRR 23-1.7(e) and 12 NYCRR 23-2.1.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon an owner or general contractor to provide reasonable and adequate protection to workers on the premises (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 670 N.Y.S.2d 816, 693 N.E.2d 1068).   In order to establish liability under Labor Law § 241(6), a claimant is required to establish a breach of a rule or regulation of the Industrial Code which gives a specific, positive command (see Singleton v. Citnalta Constr. Corp., 291 A.D.2d 393, 394, 737 N.Y.S.2d 630).

 Here, the claimant alleges that the State violated two provisions of the Industrial Code:  12 NYCRR 23-1.7(e) and 12 NYCRR 23-2.1. In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the claimant failed to raise a triable issue of fact as to whether 12 NYCRR 23-1.7(e) was violated.   The rebar upon which he tripped was an integral part of the construction (see O'Sullivan v. IDI Constr. Co., Inc., 7 N.Y.3d 805, 822 N.Y.S.2d 745, 855 N.E.2d 1159;  Stafford v. Viacom, Inc., 32 A.D.3d 388, 390, 819 N.Y.S.2d 782;  Furino v. P & O Ports, 24 A.D.3d 502, 503-504, 806 N.Y.S.2d 227;  cf. Laboda v. VJV Dev. Corp., 296 A.D.2d 441, 745 N.Y.S.2d 67).   Moreover, the claimant failed to raise a triable issue of fact with respect to his reliance on 12 NYCRR 23-2.1. That section of the Industrial Code lacks the specificity required to be a predicate for liability under Labor Law § 241(6) (see Salinas v. Barney Skanska Constr. Co., 2 A.D.3d 619, 622, 769 N.Y.S.2d 559;  Fowler v. CCS Queens Corp., 279 A.D.2d 505, 719 N.Y.S.2d 270).

 To be held liable under Labor Law § 200, “when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had ․ unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” (Ortega v. Puccia, 57 A.D.3d 54, ----, 866 N.Y.S.2d 323).   Here, the defendant submitted deposition testimony demonstrating that it had no authority to supervise or control the performance of the claimant's work, and the claimant failed to raise a triable issue of fact in opposition.   On this basis, the Court of Claims properly granted those branches of the defendant's motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action (id.;   see Chowdhury v. Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

In view of the foregoing, we need not address the claimant's remaining contention.