Summary
holding "[t]he alleged violations of OSHA standards cited by plaintiffs do not provide a basis for liability under Labor Law § 241"
Summary of this case from Hutzel v. Turner Constr.Opinion
May 18, 1999
Appeal from the Supreme Court, Bronx County (Janice Bowman, J.).
The alleged violations of OSHA standards cited by plaintiffs do not provide a basis for liability under Labor Law § 241 Lab.(6) ( see, Greenwood v. Shearson, Lehman Hutton, 238 A.D.2d 311, 313; Williams v. White Haven Mem. Park, 227 A.D.2d 923, 924). Plaintiffs' attempt in their reply papers to raise for the first time violations of Industrial Code (12 N.Y.CRR) § 12 NYCRR 23-5.1 (f) and § 12 NYCRR 23-1.2 (b) was improper ( see, Tchaika Renewal Co. v. City of New York, 232 A.D.2d 250, 251). In any event, neither section constitutes a concrete or specific standard of conduct sufficient to support a Labor Law § 241 Lab.(6) claim ( see, Moutray v. Baron, 244 A.D.2d 618, 619, lv denied 91 N.Y.2d 808; Gordineer v. Count of Orange, 205 A.D.2d 584). Accordingly, plaintiffs' Labor Law § 241 Lab.(6) claim should be dismissed and we modify to that extent.
The appealed order should otherwise be affirmed. The fact that Kilroy, a subcontractor which in turn subcontracted certain work to Liberty, plaintiff's employer, did not supervise plaintiff's work is irrelevant since there was evidence to support plaintiff's claim that Kilroy had negligently installed the scaffolding upon which plaintiff was injured, and the motion court therefore properly declined to dismiss plaintiff's claims against Kilroy under Labor Law § 200 Lab., common-law negligence and breach of warranty ( see, Terranova v. City of New York, 197 A.D.2d 402). For the same reasons, Kilroy is not entitled, at this time, to common-law indemnity from Liberty ( see, Sheehan v. Fordham Univ., 259 A.D.2d 328, 329). Similarly, there were triable issues concerning the degree of supervision and control over the site by Arnell, the general contractor, and thus its motion for summary judgment on its cross claims against Kilroy for common-law and contractual indemnity was properly denied ( see, supra).
Concur — Sullivan, J. P., Tom, Lerner and Buckley, JJ.