GARA v. HUMPHREYS HARDING INC

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

Thomas O'GARA, Plaintiff-Appellant, v. HUMPHREYS & HARDING, INC., et al., Defendants-Respondents.

Decided: April 03, 2001

ROSENBERGER, J.P., MAZZARELLI, WALLACH, SAXE and BUCKLEY, JJ. Jonathan T. Ueijo, for Plaintiff-Appellant. Patricia Zincke, Daniel L. Connors, for Defendants-Respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about October 28, 1999, which granted defendants' motion and cross motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to amend his bill of particulars, unanimously affirmed, without costs.

 Plaintiff's Labor Law § 241(6) claims were properly dismissed and the court properly rejected plaintiff's motion to amend the complaint to allege violations of Industrial Code regulations 23-1.7(d) and (e) (12 NYCRR §§ 23-1.7 [d] and [e]), since plaintiff's accident did not occur on a floor, platform, passageway or similar work area or surface within the protective purview of the cited code sections, but rather on muddy ground in an open area exposed to the elements (see, Jennings v. Lefcon Partnership, 250 A.D.2d 388, 389, 673 N.Y.S.2d 85, lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 421, 708 N.E.2d 178;  Scarupa v. Lockport Energy Assocs., 245 A.D.2d 1038, 667 N.Y.S.2d 561).

 The court also properly dismissed plaintiff's Labor Law § 200 claims since there was no evidence that the general contractor had any supervisory control over the activity in the course of which plaintiff was injured, i.e., the delivery by plaintiff's employer, a plumbing subcontractor, of pipe to the construction site (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Smith v. County of Nassau, 242 A.D.2d 380, 662 N.Y.S.2d 70).

We have examined plaintiff's remaining arguments and find them unavailing.