Opinion
June 29, 1987
Appeal from the Supreme Court, Queens County (Hyman, J.).
Ordered that the order is affirmed, with costs.
The plaintiff, an excavator and contractor, seeks to recover the value of additional work it performed to locate and protect the defendant utility's gas facilities, said work being required because of the defendant's failure to adequately furnish the plaintiff with the location of its underground facilities in violation of Industrial Code Rule No. 53 (see, 12 N.Y.CRR part 53). The legislative findings contained in Laws of 1974 (ch 818, § 1), which authorized the promulgation of Industrial Code Rule No. 53, clearly demonstrate that the plaintiff is not a member of the class which General Business Law § 764 was designed to protect (see, Trimarco v Klein, 56 N.Y.2d 98; Stoganovic v Dinolfo, 92 A.D.2d 729, affd 61 N.Y.2d 812).
Furthermore, the failure of the Legislature to provide a private right of action by which an excavator may sue an operator for the failure to provide information regarding the operator's underground facilities was a matter of legislative design rather than a mere legislative oversight (see, McKinney's Cons Laws of NY, Book 1, Statutes § 73; Pajak v Pajak, 56 N.Y.2d 394). Inasmuch as the only cause of action alleged in the plaintiff's complaint is based upon a violation of the statutory scheme, the complaint failed to state a cause of action and was properly dismissed. Mollen, P.J., Brown, Rubin and Kunzeman, JJ., concur.