MAYNARD v. Norman R. Carlson Inc., Defendant-Third-Party Respondent.

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

Edward MAYNARD et al., Respondents, v. John DE CURTIS, Doing Business as Troy Cabinet Manufacturing, et al., Appellants, James Puleo et al., Defendants and Third-party Plaintiffs; Norman R. Carlson Inc., Defendant-Third-Party Respondent.

Decided: July 30, 1998

Before:  MIKOLL, J.P., MERCURE, CREW, YESAWICH and PETERS, JJ. Edward C. Fassett Jr. (Carolyn B. George of counsel), Albany, for appellants. Finkelstein, Levine, Gittelsohn & Partners (Andrew L. Spitz of counsel), Newburgh, for respondents. Bouck, Holloway, Kiernan & Casey (William C. Foster of counsel), Albany, for third-party-defendant-respondent.

Appeal from that part of an order of the Supreme Court (Ceresia Jr., J.), entered December 12, 1997 in Rensselaer County, which partially denied a cross motion by defendants John De Curtis and Troy Cabinet Manufacturing Division of Deakon Homes and Interiors Inc. for summary judgment dismissing the complaint against them.

 Plaintiff Edward Maynard (hereinafter plaintiff) sustained the injuries forming the basis for this action in a November 12, 1993 workplace accident at the residence of defendants James Puleo and Evelyn Puleo.   Employed by a tile subcontractor in connection with renovation work that was being performed on the site, plaintiff tripped and fell when he stepped in a hole on the Puleos' lawn or on a worn pathway that workers were using to traverse the lawn.   On the present appeal, defendant John De Curtis (hereinafter defendant), alleged to have been the general contractor on the job, challenges Supreme Court's denial of so much of his summary judgment motion as was directed at plaintiffs' claim of liability under Labor Law § 241(6).

We conclude that plaintiffs failed to oppose defendant's prima facie showing with evidence raising a genuine factual issue as to defendant's liability under Labor Law § 241(6) and that Supreme Court accordingly erred in denying that part of the motion.   In our view, 12 NYCRR 23-1.7(e)(1),1 the sole industrial regulation relied upon by plaintiffs, had no arguable application to the facts of this case.   First, we agree with Supreme Court that there is no competent evidence connecting plaintiff's injuries to a 30 to 40-foot-wide roadway that extended to the rear of the house or to an adjacent “ safety ramp”.   Even if either of those areas could be properly characterized as a “passageway” (a proposition that we seriously question but need not resolve), the fact remains that plaintiff's own testimony placed him at least two or three steps distant from them at the time of his accident.

 We are then left with the issue of whether an out-of-doors dirt pathway may as a matter of law constitute a “passageway” within the purview of 12 NYCRR 23-1.7(e)(1), a question we very recently considered and resolved in the negative (Gavigan v. Bunkoff Gen. Contrs., 247 A.D.2d 750, 669 N.Y.S.2d 69, lv. denied 92 N.Y.2d 804, 677 N.Y.S.2d 779, 700 N.E.2d 318;  see, McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 629 N.Y.S.2d 358;  Stairs v. State St. Assocs., 206 A.D.2d 817, 615 N.Y.S.2d 478).   In the absence of an applicable regulatory provision, there is no basis for liability under Labor Law § 241(6) (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Defendant's remaining contention need not be considered as it has been rendered academic by our determination to dismiss the complaint against him.

ORDERED that the order is modified, on the law, with costs to defendant John De Curtis, by reversing so much thereof as partially denied defendant John De Curtis' motion for summary judgment;  motion granted, summary judgment awarded to said defendant and complaint dismissed against him;  and, as so modified, affirmed.


1.   12 NYCRR 23-1.7(e)(1) provides:All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.   Sharp projections which could cut or puncture any person shall be removed or covered.

MERCURE, Justice.

MIKOLL, J.P., and CREW, YESAWICH and PETERS, JJ., concur.

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