Opinion
April 19, 1996
Appeal from the Supreme Court, Erie County, Michalek, J.
Present — Denman, P.J., Lawton, Wesley, Balio and Davis, JJ.
Order unanimously reversed on the law without costs, cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant's cross motion for summary judgment dismissing the complaint. Plaintiff, an employee of third-party defendant, was injured when he was struck by a sewer pipe on premises owned by defendant. On the day of the accident, plaintiff was installing sewer pipes in a trench approximately 13 feet deep. The sewer pipes, approximately 13 1/2 feet long and weighing approximately 30 to 50 pounds, were being handed down to plaintiff by a co-worker. The accident occurred when the co-worker slipped while handing down a pipe, dropping the pipe into the trench. Plaintiff caught a portion of the pipe in his hands and fell to his knees, sustaining back injuries. Because plaintiff's activities involved the usual and ordinary dangers of a construction site, and not the extraordinary elevation-related risks envisioned by Labor Law § 240 (1), the Labor Law § 240 (1) cause of action must be dismissed ( see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 489; Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841; Smith v. New York State Elec. Gas Corp., 82 N.Y.2d 781). Furthermore, that cause of action cannot be sustained because plaintiff's injuries were not the result of an object falling from an elevated work surface ( see, Misseritti v Mark IV Constr. Co., supra; Smith v. New York State Elec. Gas Corp., supra; Ruiz v. 8600 Roll Rd., 190 A.D.2d 1030, 1031; Fox v Jenny Eng'g Corp. [appeal No. 2], 122 A.D.2d 532, affd 70 N.Y.2d 761).
We further conclude that plaintiff's Labor Law § 241 (6) cause of action must be dismissed. A cause of action against a nonsupervising owner or contractor under that section must allege the violation of a specific rather than a general safety standard established by the Labor Commissioner ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503-505; Pellescki v. City of Rochester, 198 A.D.2d 762, 763, lv denied 83 N.Y.2d 752). Plaintiff's allegation that defendant violated the general safety standard set forth in 12 NYCRR 23-1.5 (a), therefore, is insufficient ( see, Dombrowski v. Schwartz, 217 A.D.2d 914; Gordineer v. County of Orange, 205 A.D.2d 584). Moreover, plaintiff's allegations that defendant violated the specific safety standards set forth in 12 NYCRR 23-4.2, 23-4.3, 23-4.4 and 23-4.5 are also insufficient because those regulations involve the shoring and stabilization of trenches and other excavation work and, therefore, are not applicable to this case ( see, Klien v. County of Monroe, 219 A.D.2d 846, lv denied 87 N.Y.2d 804; Adams v. Glass Fab, 212 A.D.2d 972).
Finally, the Labor Law § 200 and common-law negligence causes of action must be dismissed because the record contains no proof that defendant actually supervised or controlled plaintiff's work ( see, Walsh v. Amherst Constr. Co., 226 A.D.2d 1053 [decided herewith]; Mamo v. Rochester Gas Elec. Corp., 209 A.D.2d 948, 949, lv dismissed 85 N.Y.2d 924; see also, Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876).
In light of the foregoing, we do not consider defendant's remaining contention.