Accordingly, any claims in the complaint predicated upon an alleged violation of Labor Law § 240(1) must be severed and dismissed. Turning to Labor Law § 241(6), it is familiar law that a recovery thereunder is dependent upon plaintiff's ability to demonstrate that the injury in question resulted from defendants' violation of a concrete provision of Rule 23 of the New York State Industrial Code ( 12 NYCRR §§ 23-1.1 et seq.), i.e., a provision setting forth "a specific standard of conduct as opposed to a general reiteration of common-law principles" ( see Hill v. Corning Inc., 237 AD2d 881, 882 [4th Dept 1997], lv dismissed and denied 90 NY2d 884, citing Adams v. Glass Fab, 212 AD2d 972, 973 [4th Dept 1995]). As such, so much of the complaint in this case as is predicated on an alleged violation of 12 NYCRR § 23-1.5 must be severed and dismissed, since the cited regulation has been held to constitute a general safety standard that is insufficiently precise to impose liability under Labor Law § 241(6) ( see Mancini v. Pedra Constr., 293 AD2d at 454).
The risks associated with walking in snow and ice were readily observable by the reasonable use of the senses, and they were risks which Feigles appreciated. See Ramski v. Zappia Enterprises, Inc., 229 A.D.2d 990, 645 N.Y.S.2d 364 (4th Dep't 1996) (affirming trial court's decision granting summary judgment and dismissing plaintiffs § 200 claim against property owner and general contractor because, inter alia, "an ice patch at a construction site" is a "condition that may be readily observed," and "defendants had no duty to protect plaintiff against [such] a condition"); see also Hill v. Corning, Inc., 237 A.D.2d 881, 654 N.Y.S.2d 524 (4th Dep't), appeal dismissed in part on other grds, appeal denied in part, 90 N.Y.2d 884, 661 N.Y.S.2d 826, 684 N.E.2d 275 (1997) (ruling that plaintiff, injured from fall on snow and ice as he walked from truck to job site, could not survive defendants' summary judgment motion on plaintiffs § 200 claim, because the slippery conditions were apparent). This is not a situation where the condition at issue was hidden or not readily observable. Based on the conceded evidence here it is apparent that the slippery conditions were readily observable and anticipated. It certainly is not remarkable that a construction worker working at an outdoor site in the winter on days while it is snowing and cold might expect the footing to be slippery.
The fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition but, rather, bears only on the injured person's comparative fault ( see e.g. Maza v. University Ave. Dev. Corp., 13 AD3d 65; Tulovic v. Chase Manhattan Bank, 309 AD2d 923; MacDonald v. City of Schenectady, 308 AD2d 125, 126-127; Waszak v. State of New York, 275 AD2d 916; Ditz v. Myriad Constrs., 269 AD2d 874). To the extent that prior decisions of this Court hold to the contrary ( see e.g. Millson v. Arnot Realty Corp., 266 AD2d 918; Shandraw v. Tops Mkts., 244 AD2d 997; Hill v. Corning Inc., 237 AD2d 881, lv denied in part and dismissed in part 90 NY2d 884), they should no longer be followed.
We affirm. In order to sustain a cause of action pursuant to Labor Law § 241 (6), plaintiff was required to demonstrate the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury (see, D'Egidio v. Frontier Ins. Co., 270 A.D.2d 763, 704 N.Y.S.2d 750). This plaintiff failed to do. As for plaintiff's reliance upon 12 NYCRR 23-1.33 (d), there is doubt as to whether that section qualifies as a specific safety standard upon which a Labor Law § 241 (6) claim may be based (see, Hill v. Corning Inc., 237 A.D.2d 881, lv dismissed, lv denied 90 N.Y.2d 884;McMahon v. Durst, 224 A.D.2d 324; cf., Ozzimo v. H.E.S. Inc., 249 A.D.2d 912; McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877). Nevertheless, we agree with Supreme Court that 12 NYCRR 23-1.33 applies to persons passing by construction operations and not to workers, such as plaintiff, on a construction site. Likewise, although 12 NYCRR 23-1.7 (d), which sets forth concrete specifications governing slipping hazards, is sufficiently specific to sustain a Labor Law § 241 (6) claim, that regulation is inapplicable to the facts of this case because the temporary roadbed upon which plaintiff fell does not constitute a passageway, walkway or other elevated working surface contemplated by the regulation (see, Jennings v. Lefcon Partnership, 250 A.D.2d 388,lv denied 92 N.Y.2d 819; Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 987).
The plaintiffs' sole contention is that the trial court should have charged the jury with respect to Labor Law § 241 Lab.(6) because the defendant violated 12 NYCRR 23-1.7(d), which provides that "a floor, passageway, scaffolding, platform, or other elevated-working surface" shall be kept clear of "ice, snow, water, grease" or other slippery conditions (see, Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343). We disagree, as it is clear that the injured plaintiff did not fall on a "passageway" within the meaning of 12 NYCRR 23-1.7(d) (see, Maynard v. DeCurtis, 252 A.D.2d 908; Bauer v. Niagara Mohawk Power Corp., 249 A.D.2d 948; Gavigan v. Bunkoff Gen. Contrs., Inc., 247 A.D.2d 750; Hill v. Corning Inc., 237 A.D.2d 881). RITTER, J.P., JOY, GOLDSTEIN and H. MILLER, JJ., concur.
In the latter case, defendant is not liable because he exercised no supervisory control over the injury-producing work (see, Miller v. Wilmorite, Inc., supra). In the instant case, however, plaintiff alleges that his injury was caused by the defective condition of the premises, and defendant failed to meet his burden of establishing that he did not breach his duty "to take reasonable care and prudence in securing the safety of the work area" (Hammond v. International Paper Co., 161 A.D.2d 914). The record does not support the contentions that plaintiff may not recover for injuries allegedly resulting from the defective condition of the loft floor because he was hired to remedy that condition (cf., Lindstedt v. 813 Assocs., 238 A.D.2d 386, 387, lv dismissed 90 N.Y.2d 1007, rearg denied 91 N.Y.2d 867; Skinner v. G T Realty Corp. of N. Y., 232 A.D.2d 627) or because that condition was readily observable (cf., Hill v. Corning Inc., 237 A.D.2d 881, lv dismissed in part and denied in part 90 N.Y.2d 884). We therefore modify the order by denying that part of defendant's cross motion for summary judgment seeking dismissal of the common-law negligence and Labor Law § 200 claims and reinstating those claims.
h the following Memorandum: Supreme Court erred in denying in its entirety the cross motion of defendant McCarty Construction, Incorporated (McCarty) for summary judgment dismissing the complaint against it. L. Charles Rose (plaintiff) slipped while standing on an icy floor. Because there was no elevation related hazard of the type contemplated by Labor Law § 240 Lab. ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514), that claim should have been dismissed against McCarty. The Labor Law § 200 Lab. claim also should have been dismissed because McCarty did not direct, control or supervise the work that plaintiff was performing at the time of the accident ( see, Russin v. Picciano Son, 54 N.Y.2d 311, 316-317; see also, Mamo v. Rochester Gas Elec. Corp., 209 A.D.2d 948, 949, lv dismissed 85 N.Y.2d 924), nor did McCarty have a duty to protect plaintiff against a dangerous condition that was readily observable ( see, Hill v. Corning Inc., 237 A.D.2d 881, lv dismissed in part and denied in part 90 N.Y.2d 884). The court properly denied that part of McCarty's cross motion with respect to Labor Law § 241 Lab. (6). Contrary to McCarty's contention, McCarty was an agent of the owner for purposes of providing a safe worksite ( see, Russin v. Picciano Son, supra, at 317-318).
Those defendants established that they did not exercise any supervisory control over the manner or method of plaintiff's work ( see, Lombardi v. Stout, 80 N.Y.2d 290, 295; Gray v. Balling Constr. Co., 239 A.D.2d 913; McCune v. Black Riv. Constructors, 225 A.D.2d 1078, 1079). In addition, defendants had no duty to protect plaintiff against a defective or dangerous condition that was readily observable ( see, Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110; Pasquale v. City of Buffalo, 255 A.D.2d 874; Hill v. Corning Inc., 237 A.D.2d 881, lv dismissed in part and denied in part 90 N.Y.2d 884). We modify the judgment and order, therefore, by denying that part of plaintiffs' motion seeking partial summary judgment with respect to Daruszka and granting in its entirety the cross motion of Daruszka for summary judgment dismissing the complaint against him.
The "presence of ice below the gutterless roof raises a question of fact as to causation and [the owner's] responsibility * * * for defects on the premises over which he retains control" ( El Shammaa v. Parent, 237 A.D.2d 684, 685; see also, Loguidice v. Fiorito, 254 A.D.2d 714; Migli v. Davenport, 249 A.D.2d 932). The court properly granted that part of defendant's motion seeking summary judgment dismissing the Labor Law § 241 Lab. (6) claim and third-party defendant's cross motion for the same relief. The Labor Law § 241 Lab. (6) claim is premised upon an alleged violation of 12 NYCRR 23-1.7 (d) and (e). Because the accident occurred in an open area and not on a defined walkway, passageway or path, section 23-1.7 (d) does not apply ( see, Hill v. Corning Inc., 237 A.D.2d 881, 882, lv dismissed in part and denied in part 90 N.Y.2d 884; McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 878). Section 23-1.7 (e) also does not apply because plaintiff slipped on ice and did not trip as the result of an obstruction such as dirt or debris within the meaning of subdivision (e) ( cf., Cafarella v. Harrison Radiator Div., 237 A.D.2d 936).
With respect to the Labor Law § 241 (6) cause of action, plaintiffs alleged that defendant violated 12 NYCRR 23-1.7 (d) and (e). Subdivisions (d) and (e) "apply to specified work areas, such as floors, roofs or platforms * * * and to defined walkways, passageways or paths, not to common areas or an open yard in front of or between buildings" (McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 878; see, Adams v. Glass Fab, 212 A.D.2d 972, 973; Stairs v. State St. Assocs., 206 A.D.2d 817, 818). Contrary to plaintiffs' characterization of the area where plaintiff fell as a "pathway," the area is a common area off the roadway that extends around the perimeter of the plant and is not a defined walkway or passageway. Thus, 12 NYCRR 23-1.7 (d) and (e) do not support the Labor Law § 241 (6) cause of action (see, Scarupa v. Lockport Energy Assocs., 245 A.D.2d 1038; Shandraw v. Tops Mkts., 244 A.D.2d 997; Garland v. Zelasko Constr., 241 A.D.2d 953; Hill v. Corning Inc., 237 A.D.2d 881, lv dismissed in part and denied in part 90 N.Y.2d 884; McGrath v. Lake Tree Vil. Assocs., supra, at 878; Adams v. Glass Fab, supra, at 973).