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Supreme Court, Appellate Division, Fourth Department, New York.

James SCARUPA and Carol Scarupa, Appellants, v. LOCKPORT ENERGY ASSOCIATES, L.P., and Chas. T. Main of New York, Inc., Respondents.

LOCKPORT ENERGY ASSOCIATES, L.P., et al., Third-Party Plaintiffs, v. JOHN W. DANFORTH COMPANY, Third-Party Defendant-Respondent.

Decided: December 31, 1997

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and BOEHM, JJ. Dinardo, Dinardo & Lukasic, P.C. by Michael Dwyer, Buffalo, for Plaintiffs-Appellants Scarupa. Goldstein & Associates by Steven Goldstein, Syossett, for Defendants-Respondents Lockport Energy Assoc. Hurwitz and Fine, P.C. by Paul Suozzi, Buffalo, for Third-Party Defendant John W. Danforth Co.

 James Scarupa (plaintiff), an employee of third-party defendant, John W. Danforth Company (Danforth), was injured when he slipped on muddy ground at a cogeneration plant owned by defendant Lockport Energy Associates, L.P. (Lockport).   Plaintiffs commenced this action against Lockport and defendant Chas. T. Main of New York, Inc. (Main), alleging violations of Labor Law §§ 200 and 241(6).   Lockport established that it did not exercise control or supervision over the work leading to the injury or the general condition of the premises, and Supreme Court therefore properly granted summary judgment dismissing the Labor Law § 200 cause of action against it (see, Miller v. Wilmorite, Inc., 231 A.D.2d 843, 648 N.Y.S.2d 485).   The court erred, however, in granting that part of defendants' motion seeking to dismiss the Labor Law § 200 cause of action against Main. Although Main argues that it was not the general contractor, Kelly, an employee of Lockport, testified that it was Main's responsibility “to get it all done” and that Main hired three subcontractors, including Danforth.   Thus, Main failed to establish as a matter of law that it was not a general contractor.   With respect to Main's control of the premises, a Danforth employee testified that the construction manager of Main determined when to place gravel on muddy areas.   Thus, there is a question of fact whether Main supervised the general condition of the premises (see, Miller v. Wilmorite, Inc., supra ).

 The court properly granted that part of defendants' motion for summary judgment dismissing the Labor Law § 241(6) cause of action.   Although the regulation relied on by plaintiff (12 NYCRR 23-1.7[d] ) meets the specificity requirements of Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 (see, Durfee v. Eastman Kodak Co., 212 A.D.2d 971, 972, 624 N.Y.S.2d 704, lv. dismissed 85 N.Y.2d 968, 629 N.Y.S.2d 726, 653 N.E.2d 622), the regulation does not apply to the facts of this case.   First, contrary to plaintiffs' characterization of the area where plaintiff fell as a “passageway”, the area was a common area or open yard in front of or between buildings (see, McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 878, 629 N.Y.S.2d 358).   Additionally, plaintiff did not slip on a foreign substance, but slipped on muddy ground that was exposed to the elements (cf., Cottone v. Dormitory Auth. of State of N. Y., 225 A.D.2d 1032, 639 N.Y.S.2d 631).

We modify the order, therefore, by denying that part of defendants' motion for summary judgment seeking dismissal of the Labor Law § 200 cause of action against Main.

Order unanimously modified on the law and as modified affirmed without costs.


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